Public Protector Busisiwe Mkhwebane’s lawyers drew first blood on Thursday in her legal battle against President Cyril Ramaphosa.
They argued that Ramaphosa’s review application was devoid of any merit “whatsoever” and the president stood in contempt of the Public Protector’s office for failure to implement the remedial action in the Ivan Pillay report.
Mkhwebane found that Public Enterprises Minister Pravin Gordhan unlawfully and improperly authorised former Sars deputy commissioner Pillay’s early retirement and had instructed Ramaphosa to take remedial action against him.
Advocate Dali Mpofu argued before the Pretoria High Court that the type of interdict being sought by Ramaphosa’s legal team had no merit and had never been sought in a court of law before.
Mpofu questioned how the court could declare, as argued by his legal representatives, that Ramaphosa had complied with the Public Protector’s remedial action when it was clear that he had postponed it pending the outcome of Gordhan’s review application
“How on earth can your ladyship say the remedial action has been complied with?” Mpofu asked Judge Lettie Molopa-Sethosa.
Ramaphosa’s legal team argued that he had complied by providing Mkhwebane with a plan of action that he would take against Gordhan.
Mpofu argued that Mkhwebane was the only person who could approve that plan.
Ramaphosa’s lawyers insisted that he had not failed to comply with Mkhwebane’s orders, and said it was “unreasonable” for her to claim that he had.
In her report, the Public Protector’s remedial action said that Ramaphosa needed to submit a plan for how he would be taking remedial action against Gordhan for her approval within 30 days of her report being made public.
On Monday, Judge Sulet Potterill ruled that Mkhwebane’s remedial orders against Gordhan in the so-called Sars “rogue unit” case be suspended.
The “rogue unit” was an investigative unit established in 2007. Mkhwebane ruled that it had been unlawfully formed and had conducted illegal intelligence gathering operations.
In her judgment, Potterill established that Gordhan had a prima facie right for the remedial orders to be suspended, pending a court review of her report.
Sulet said Mkhwebane’s orders were “vague, contradictory and/or nonsensical”.
Mpofu said that Monday’s ruling was “clearly wrong” and “embarrassing”.
He said the correspondence cited at the start of Potterill’s judgment had nothing to do with the “rogue unit” case, but was in fact applicable to the matter being argued on Thursday.
Mkhwebane’s council had a strong description for the president’s argument that he had complied with Mkhwebane’s orders by providing her with an implementation plan about the action he would take – in which he stressed that he would await the outcome of Gordhan’s legal action before taking any such action.
Mpofu said Ramaphosa had come to court on “shoddy pretences”.