Ramaphosa vs. Mkhwebane: 7 key arguments in court papers

The Gauteng High Court in Pretoria will likely on Thursday hand down a crucial ruling involving President Cyril Ramaphosa and Public Protector Busisiwe Mkhwebane.

Ramaphosa brought an urgent court application last Thursday, asking the court to either rule he has complied with the remedial action ordered by Mkhwebane, or that the remedial action be put on hold pending the outcome of Gordhan's review application. 

He undertook to implement the remedial action within 30 days of the outcome of the review process.

The matter relates to Mkhwebane’s’ report into Gordhan released on May 24 where she found he had unlawfully approved former deputy commissioner of the South African Revenue Services Ivan Pillay’s early pension in 2010. Pillay continued to work at SARS after his payout and the tax agency incurred a R1.2m penalty. Gordhan was finance minister at the time. Mkhwebane received an anonymous complaint and investigated.

Mkhwebane, in her report, instructed Ramaphosa to take "appropriate disciplinary action" against Gordhan, but did not specify what this should be. Gordhan has taken her report on review after saying in May that the public protector's findings were "totally wrong both in fact and in law".

Thursday was a lengthy day of legal arguments, with Gordhan supporting the president and the EFF backing up Mkhwebane in their court papers. Judge Letty Molopa-Sethosa reserved judgement and said she hoped to hand down her ruling next week.

Here are seven things you need to know from the legal documents.

1.   Last resort

In his founding affidavit, Ramaphosa says he brought this application as a "last resort" and this is not a political matter but a legal one.

"[This] will unfortunately feed into the unfounded narrative that the state and its institutions is at war with itself it is a constitutionally unpalatable state of affairs to have the public protector, the minister and now the president being embroiled in litigation against each other," Ramaphosa’s affidavit reads.

2.   Disciplinary action must be rational

Mkhwebane gave Ramaphosa 30 days from the release of the report in May, to send her an implementation plan of action against Gordhan. Ramaphosa said he sent her a letter stating he is awaiting the outcome of the review application by Gordhan.

"The president understands himself to have complied with the PP’s remedial action," Ramaphosa states. 

He adds that he believes the review application by Gordhan is not "frivolous" and he is therefore unsure of what course of discipline to take against him before the court rules.

3.   Alarmist concerns

Ramaphosa’s affidavit lays out the importance of the public protector’s office and her constitutionally enshrined role in holding public officials accountable. However, the president states that her fear this case will set a precedent for her office to be disrespected, is incorrect.

"[This] will create a stance where ministers and other public functionaries bring review application against reports of the public protector in order to frustrate the implementation of remedial actions is wholly without merit and indeed alarmist (to say the least)."

 4.   President taking sides

Mkhwebane accuses Ramaphosa of taking sides and choosing to protect Gordhan over the public protector.

"Moreso, when that dispute regarding the legal implication of a review application, involves a minister who is generally regarded as being a close friend or ally of the president. This may rightly or wrongly create the impression that there is more to this application than merely seeking legal advice from the court… which is legally inappropriate," Mkhwebane’s answering affidavit reads.

5.   Litigation offends spirit and letter of the law

Organs of state are required, according to the Constitution, to foster friendly relations and to litigate against each other as a matter of last resort, which have not been met in this case, according to Mkhwebane.

She adds that a private arbitration meeting could have been held to iron out their differences.

"It is generally undesirable that two of the most important offices in our democracy, the presidency and the office of the PP should find themselves as adversaries in litigation," Mkhwebane’s answering affidavit reads.

 6.   Constitutional crisis risk

Mkhwebane takes issue with Ramaphosa stating he cannot take disciplinary action against Gordhan yet, in case his review application of the report is successful.

"Whatever inconvenience the president fears may be caused to minister Gordhan if he is subjected to appropriate disciplinary action and yet he emerges successful in his review application, must fall into complete insignificance compared to the damage to the public interest and good governance is such action is not taken and the review is unsuccessful, Mkhwebane states.

She adds that Ramaphosa is risking a "constitutional crisis for the sake of servicing one individual from the possible inconvenience of an unwarranted reprimand, warning or even a fine or salary sacrifice."

7.   Bosasa link

Mkhwebane highlights in her affidavit when Ramaphosa launched this application, he was already aware she had made adverse, preliminary findings and remedial action in relation to the Bosasa matter.

"[It is] not clear to what extents this application was just a pre-emptive strike and a prelude to the speculated review application," Mkhwebane states.

The public protector on July 19 found Ramaphosa was in breach of the Executive Ethics Code and should have declared the R500 000 donation from controversial Bosasa CEO Gavin Watson towards his ANC 2017 presidential campaign.

Ramaphosa is taking the report on review and in his preliminary court papers filed last week, said her findings were "utterly irrational" and not based on law.

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