Pretoria High Court Judge Sulet Potterill has been taken off the case between Public Protector Busisiwe Mkhwebane and State Security Minister Ayanda Dlodlo relating to the Sars rogue unit report and the review application of Public Enterprises Minister Pravin Gordhan.
Dlodlo’s interlocutory application was due to be heard before Potterill for the next five days starting tomorrow.
However, following a meeting on Friday between North Gauteng Deputy Judge President Aubrey Ledwaba and the affected parties, the hearing was set down for November 6.
Dlodlo wanted the court to remove the report of the inspector-general of intelligence from the court record because it contained sensitive information.
Mkhwebane disagreed, saying the document – which the Equality Court earlier this week allowed as part of the record in a separate matter between Gordhan and the EFF – formed a “central” part of the case against Gordhan, who has denied the existence of the rogue unit.
Acting public protector spokesperson Oupa Segalwe said Ledwaba agreed to assign another judge and not Poterrill as she was the subject of a complaint by Mkhwebane, which was before the Judicial Services Commission (JSC).
“She has already made disparaging findings against the Public Protector and expressed her negative views on the matter,” Segalwe said.
In August Mkhwebane wrote a scathing affidavit to Chief Justice Mogoeng Mogoeng and the JSC, saying that Potterill, in granting Gordhan an interdict against the report on the rogue unit report in July, used “harsh language” that was “disparaging, derogatory and was actuated by personal spite”.
Mkhwebane said in her affidavit that without imposing and prescribing the desired outcome and with due respect to the independent powers and functions of the JSC, it was her “considered view that the judge should be ordered to retract and render a formal apology to the Public Protector”.
Subsequently, Mkhwebane objected to Potterill presiding over the dispute with Dlodlo, saying she “does not believe that she [Potterill] will be impartial when hearing the matter”.
Despite the fact that the EFF had already publicised the document, state security spokesperson Mava Scott said Dlodlo was still pursuing her interlocutory application against Mkhwebane.
In terms of the process agreed to before Ledwaba on Friday, all parties had until this Friday to file their respective court papers.
The EFF, which was also filing its own counter application in the matter, would then have until the following week on Friday to file a replying affidavit.
By the end of the month all parties were expected to have filed their heads of argument.
Also on Friday, the EFF was expected to file its application to intervene in support of Mkhwebane in the case of civil society group Accountability Now, which applied to court for an order declaring Busisiwe Mkhwebane unfit for office.
Accountability Now’s Paul Hoffman said the case was based on adverse findings made against her in the Constitutional Court regarding the Absa/Bankorp matter, in which the majority judgment found that she had been dishonest, while the minority judgment by Mogoeng disagreed.