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AS IT HAPPENED: Gordhan doubts Mkhwebane's integrity, legal literacy and Constitutional grasp - lawyers

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29 Jul 2019

The high court ruling that earlier suspended remedial orders by Public Protector Busisiwe Mkhwebhane against Public Enterprises Minister Pravin Gordhan is an important affirmation of Gordhan's rights to procedural fairness, his legal team said in a statement released on Monday afternoon.
Read the full story here.

29 Jul 2019

Public Enterprises Minister Pravin Gordhan has welcomed the ruling in his favour by the Gauteng High Court in Pretoria earlier today.

In a statement issued by his legal representation on his behalf, Gordhan said the office of the Public Protector should "welcome the scrutiny of its work". 

He said the High Court ruling was an important affirmation of his rights to procedural fairness.

More to follow.


29 Jul 2019

Gordhan's lawyer: 'We are soldiering on'

Public Enterprises Minister Pravin Gordhan's legal team will be "soldiering on", his attorney Tebogo Malatji has said.

Malatji spoke to Fin24 by phone on Monday, following a ruling by a high court earlier that interdicted the Public Protector's remedial actions against Gordhan.

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 into the SA Revenue Service "rogue unit".

Among the remedial actions listed was for President Cyril Ramaphosa to take disciplinary action against Gordhan with 30 days. In his submission, the president said he could not carry out any actions against Gordhan while the report was still subject to review by the courts.

Now that the court has granted Gordhan an interdict, his legal team will be making more submissions to the court in relation to the review application, Malatji explained.

Gordhan is seeking the courts to declare that the Public Protector's office and Mkhwebane personally, acted in breach of their constitutional duties to be independent and to exercise their powers and perform their functions without fear, favour or prejudice

More here

29 Jul 2019

'Contradictory and non-sensical': Why Gordhan took round one

Judge Sulet Potterill on Monday ruled that the Public Protector Busisiwe Mkhwebane's remedial orders against Public Enterprises Minister Pravin Gordhan be suspended.

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 into the SA Revenue Service "rogue unit".

Among the remedial actions listed by Mkhwebane include having President Cyril Ramaphosa take disciplinary action against Gordhan, to have Speaker of the National Assembly Thandi Modise refer Gordhan to the Joint Committee on Ethics on Members Interests and for the minister of State Security and the SARS Commissioner to investigate him.

In total there were 10 respondents in the matter, including former SARS Deputy Commissioner Ivan Pillay and former Commissioner Oupa Magashula.

Potterill ordered Mkhwebane, the Public Protector's Office and the EFF to jointly and severally carry the costs of Gordhan, Pillay and Magashula.

Here are seven things Potterill said in her judgment

29 Jul 2019

'It is a fight to the end': EFF to appeal interdict granted in favour of Pravin Gordhan against Public Protector

The Economic Freedom Fighters have announced their intention to appeal the decision of the Gauteng High Court in Pretoria in the matter between Public Enterprises Minister Pravin Gordhan and Public Protector Busisiwe Mkhwebane.

The party on Monday said it had "noted" the court's decision to grant Gordhan an interdict against the implementation of the Public Protector's remedial action in her SARS-related report findings against him.

"We are not surprised by this decision, which is why we had already declared on the day of proceedings, that we shall be going to the Constitutional Court," a party statement read.

"This is because we had realised how visibly irritated Judge Sulet Potterill was, when the black lawyers who were exclusively arguing against the exclusively white lawyers of [Pravin] Jamnandas Gordhan, [President Cyril] Ramaphosa, and all who wanted the interdict. 

Continue reading

29 Jul 2019

The Gauteng High Court in Pretoria ruled on Monday that Public Protector Busisiwe Mkhwebane's remedial action against Public Enterprises Minister Pravin Gordhan be suspended, pending a judicial review of her report into the SA Revenue Service "rogue unit".

In her judgment, Judge Sulet Potterill found that Gordhan had established a prima facie case to have the interdict granted. She also slammed some of Mkhwebane's assertions as "non-sensical". Read the full judgment here.

READ THE FULL JUDGMENT HERE

29 Jul 2019

The EFF will approach the Constitutional Court to appeal an interdict of the public protector's remedial action against Gordhan.

29 Jul 2019

Mkhwebane interdicted from enforcing remedial action against Gordhan

The Gauteng High Court in Pretoria has ruled that Public Protector Busisiwe Mkhwebane's remedial action against Public Enterprises Minister Pravin Gordhan be suspended.

Gordhan applied for an urgent interdict last Tuesday to suspend the remedial action in the South African Revenue Service (Sars) so-called 'rogue unit' report against him, while he seeks a full judicial review. 

Judge Sulet Potterill handed down the decision. Mkhwebane found, earlier in July, that the establishment of the unit, in 2007 was illegal and that it conducted unlawful intelligence. Gordhan was the tax agency’s commissioner at the time.

Her remedial action stated that President Cyril Ramaphosa should discipline Gordhan within 30 days of her report. Mkhwebane also directed the police and National Prosecuting Authority to consider criminal charges against him. She further gave speaker of parliament Thandi Modise 14 days to refer the public enterprises minister to parliament's ethics committee to be investigated for violating the ethics code. This deadline passed on July 25.

Gordhan’s legal team argued that he would continue to "suffer baseless, but engineered, reputational damage" if the remedial action was not suspended, pending a full review of the report. He further advanced that the Sars unit was legally established and the appointment of  former deputy commissioner Ivan Pillay, without any qualifications was justified as he had spent his formative years fighting in the anti-apartheid struggle. 

Full story here

29 Jul 2019

Potterill says the public protector or the office of the public protector are interdicted from enforcing the remedial action

29 Jul 2019

 Potterill makes her order.

29 Jul 2019

Potterill notes, the harm to Gordhan would be irreparable if the interdict is not granted.

29 Jul 2019

The president cannot be criticised for awaiting the court's decision on the suspension of the remedial action and the review of the remedial action, says Potterill.

29 Jul 2019

Suspending an order of the PP will not weaken her office, says Potterill.

29 Jul 2019

Judge says Public Protector's legal representation did not address the "special circumstances" required in terms of her entertaining a complaint that is more than two years after the event.  

Gordhan’s court papers read, "In this case, all the complaints are more than two years old – some of them are more than a decade old. When asked to identify which 'special circumstances' she relied on to investigate the complaints, the Public Protector failed to identify any rational grounds for her decision evaded the question and on occasion contradicted herself," Gordhan's legal papers read.


29 Jul 2019

The EFF also submitted an affidavit claiming that SARS spied on citizens.

29 Jul 2019

Gordhan explained to crack down on illicit trade, SARS had to improve its capacity, Potterill notes.

A specialist internal capacity was created to focus on illicit activity.

The unit was established lawfully.

29 Jul 2019

Gordhan in his affidavit also said that the PP's findings on the so-called rogue unit are flawed. 

29 Jul 2019

Potterill says the PP was not entitled to '"entertain" complaints dating back more than two years.

The SARS unit was established in 2007.

The PP also found that Gordhan failed to disclose to Parliament that he attended a meeting where a member of the Gupta family may have been present. This meeting was in 2010.

Gordhan has established a prima facie right for an interdict to be granted on the remedial action in both regards. 

29 Jul 2019

Potterill now reads from the public protector's response - which slammed the president's refusal to act on her remedial action as a failure to uphold the Constitution. 

29 Jul 2019

Potterill reads from the president's affidavit - indicating he cannot exercise disciplinary action against Gordhan while the matter is still before the courts. 


29 Jul 2019

Potterill now weighs in on whether she will or will not interdict the remedial action.

29 Jul 2019

Potterill reads out Mkhwebane's remedial action.

29 Jul 2019

Judge Sulet Potterill is handing down the judgment.

29 Jul 2019

Meanwhile, Bloomberg has reported that the public protector is investigating Eskom's deals with 27 independent power producers.
Public Protector allegedly probing Eskom energy deals

29 Jul 2019

Ruling to be handed down at 10:00

Fin24 reporter Tehillah Niselow has confirmed that due to delays caused by a bus strike, judgment is expected to be handed down at 10:00, and not 09:30.

Empty buses have been parked at entrances to Pretoria, "causing major backlogs", Niselow says.


29 Jul 2019

EFF leader Julius Malema also joined the legal wrangle between Public Protector Busisiwe Mkhwebane and Public Enterprises Minister Pravin Gordhan.

In his affidavit, Malema asks the court to dismiss Gordhan's application for relief with costs.

Gordhan vs. Mhkwebane: Malema joins court case

29 Jul 2019

Legal Practice Council to deliberate on Friday whether Mkhwebane should be scrapped from advocates roll

The Legal Practice Council is expected to deliberate on whether Public Protector Advocate Busisiwe Mkhwebane should be struck off the roll on Friday.

This after it received a request from non-profit organisation, Accountability Now, who wrote to the Council following Monday morning's Constitutional Court judgment which found Mkhwebane had acted in bad faith and put forward a "number of falsehoods" in the Absa/Bankorp case.

The LPC, which regulates the legal profession, confirmed to Fin24 on Tuesday that it had received the request.

"Council requests to be afforded time to review the Constitutional Court judgment and its implications in the light of the request for a striking off application," the LPC’s acting executive officer Charity Nzuza wrote in an email to Fin24.

MORE HERE

29 Jul 2019

7 things you need to know about the scathing ConCourt judgment against Mkhwebane

The Constitutional Court in a majority judgment on Monday morning upheld the North Gauteng’s High Court order in February 2018 for Public Protector Busisiwe Mkhwebane to be personally liable for 15% of the legal fees in the Absa/Bankorp case.

Continue reading

29 Jul 2019

Last week the Constitutional Court upheld the personal costs order against Public Protector Busisiwe Mkhwebane - and agreed with the North Gauteng High Court that her entire Absa/Bankorp investigation was flawed.

ConCourt upholds cost order against Mkhwebane, rules she was 'not honest' in Absa investigation

29 Jul 2019

Ferial Haffajee: Campaign against Gordhan works as Eskom reform stalls

The scariest headline I have read this week (and there have been a few) is the Bloomberg one noting that Eskom’s debt is now effectively bundled as sovereign debt.

The implications are huge. We have likely overshot the 60% debt to GDP ratio with this week’s R59bn additional bailout to Eskom granted through a Special Appropriation bill tabled by Finance Minister Tito Mboweni.  

Eskom’s reform has stalled.

It does not have a CEO and last week the head of Treasury Andre Pillay threw in the towel too. It is significant that there has not been load shedding through the heart of Winter, but this could also be because the economy is in the dumps with continual downward growth revisions.  

There are many reasons Eskom can’t pull out of crisis and the campaign against Minister of Public Enterprises Pravin Gordhan is at least one of them. The campaign is being waged by the Public Protector Busisiwe Mkhwebane who has, in the face of much evidence to the contrary, resuscitated three old campaigns related to Gordhan’s tenure at SARS, the revenue service.

In today’s announcement that she is investigating the appointment of SARS Commissioner Edward Kieswetter, Mkhwebane makes clear that her powerful office is being used to batter economic reform. 

The three investigations are that he allowed a "rogue unit" to conduct illicit surveillance at SARS (numerous reports show this was not so); signed off an illegal early pension arrangement for former deputy SARS Commissioner Ivan Pillay (a legal opinion showed it to be legal); and now that staff of his are allegedly still being paid by the tax agency even though they work at other departments.

Continue reading

29 Jul 2019

A guide to the Gordhan-Mkhwebane saga as the court readies its ruling

Public Enterprises Minister Pravin Gordhan is expected to hear this week from the Gauteng High Court in Pretoria whether the remedial action against him, as directed by Public Protector Advocate Busisiwe Mkhwebane, should be implemented. 

The two squared off in court just under a week ago with Mkhwebane supported by the Economic Freedom Fighters and the presidency siding with Gordhan. The legal battle centres around her report in early July into the so-called 'rogue unit' at the SA Revenue Service (Sars).

The unit - also known as the High Risk Investigations Unit - was established in 2007 when Gordhan was the tax agency's commissioner.

Mkhwebane found that the establishment of the unit was illegal and that it conducted unlawful intelligence operations. Her report stated that the tax agency failed to follow procurement rules when it bought spying equipment for its operations.

In the same report, she also found that Gordhan lied to Parliament by not disclosing a meeting where a member of the Gupta family may have been present.  

Gordhan is asking the court to suspend the remedial action in Part A of the application and review the entire report in Part B. The review application comes as several other reports by the public protector have been set aside by the court.

The Constitutional Court on Monday found she had lied under oath in her Absa/Bankorp findings which were overturned in February 2018.

Additionally, Ramaphosa himself will also apply to have her report, that stated he violated the executive ethics by lying to parliament over a Bosasa donation, dismissed. 

MORE HERE

29 Jul 2019

High Court to rule on Gordhan-Mkhwebane legal battle

The Gauteng High Court in Pretoria will rule on Monday whether the remedial action laid out by Public Protector Busiswe Mkhwebane against Minister of Public Enterprises Pravin Gordhan, should be suspended.

Judge Sulet Potterill will hand down her decision at 09:30.

Gordhan applied for an urgent interdict last Tuesday to suspend the remedial action in the South African Revenue Service (SARS) so-called 'rogue unit' report against him, while he seeks a full judicial review.

The court ruling comes a week after a majority ruling by the Constitutional Court found Mkhwebane had not acted in good faith and told false and misleading statements, in the litigation around her Absa/Bankorp report.

She was ordered to pay 15% of the South African Reserve Bank’s costs and there have been renewed calls for Parliament to remove her and the Legal Practice Council to strike her off the advocates roll.

MORE HERE
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