EFF heads straight to ConCourt to clarify Public Protector's powers

EFF leader Julius Malema has asked the Constitutional Court to give guidance urgently about the recent interim interdict applications against the public protector's remedial action.

In papers filed at the apex court on Tuesday, Malema said that "interim interdicts against the Public Protector—at the behest of senior members of the executive —are a relative novelty".

"In less than a month, the Gauteng Division has granted two urgent interim interdicts against the Public Protector…more will probably follow. This Court’s guidance is urgently needed," Malema’s affidavit read. 

He asked the ConCourt to set aside the Gauteng High Court in Pretoria’s decision in late July to suspend remedial action against Minister Pravin Gordhan over the so-called SA Revenue Services 'rogue unit' pending a judicial review of the entire report. 

A similar ruling was handed down by the same court on August 8 ordering a stay of the remedial action instructed by the public protector towards Gordhan over former SARS deputy commissioner Ivan Pillay’s early retirement, pending a full review.

The EFF has accused the judiciary of bias in both these rulings.  

Public Protector Busiswe Mkhwebane has also approached the ConCourt to review Judge Sulet Potterill’s decision to suspend her instructions against Gordhan over the ‘rogue unit’ saying this created “unbearable conditions” for her office.

 'David's sling'

In his founding affidavit, Malema highlighted that the apex court in 2016 compared the public protector to David taking on Goliath in the Nkandla case and according to him, these powers are now being eroded. 

“David’s sling — the Public Protector’s ability to take remedial action — has been taken away, undoing much of this Court’s hard work,” Malema stated. 

He added that an interim interdict like the one the High Court granted, dilutes the Public Protector’s “constitutionally derived power to take appropriate remedial action”.

“Interim interdicts against the Public Protector cause even more harm to the separation of powers because what is being interfered with is the exercise of a power derived directly from the Constitution,” Malema’s legal document reads.

The EFF leaders argue that the apex court has jurisdiction to hear the appeal as it involves constitutional matters and raises points of law which are of public importance.

Malema explains that they are asking for direct leave to appeal at the ConCourt as it is an urgent matter. 

“By the time an appeal to a Full Bench or the Supreme Court of Appeal is heard, the interim interdict may have fallen away with the determination of the main review (making the interim interdict moot),” Malema’s affidavit states. 

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