Mkhwebane vs Gordhan: 'No merit in suggestion PP erred in imposing remedial action on president'

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Public Protector Busisiwe Mkhwebane.
Public Protector Busisiwe Mkhwebane.
Raymond Morare
  • Public Protector Busisiwe Mkhwebane in court documents argues there is no merit in suggesting she erred in imposing remedial action in the Pillay pension saga.
  • The Public Protector's legal team argues this is premised on the mistaken belief the president's powers are strictly confined to hiring and firing a minister.
  • The Public Protector argues the president has certain powers as the head of the executive.

There is no merit in suggesting Public Protector Busisiwe Mkhwebane erred in imposing remedial action on President Cyril Ramaphosa in the Ivan Pillay pension saga due to the absence of an employment relationship rendering the remedial action taken against the president "incompetent".

"This ground is premised on the mistaken belief that the president has no power to discipline a minister or to admonish him or her and that the powers of the president are strictly confined to hiring and firing a minister," advocate Dali Mpofu SC, on behalf of Mkhwebane, argued in court papers.

This as the Gauteng High Court in Pretoria is currently hearing an application by Public Enterprises Minister Pravin Gordhan to review and set aside the Public Protector's report 24 of 2019/20.

READ | Mkhwebane vs Gordhan: Remarks made by Gordhan constitute criminal contempt, court hears

The report found - among other things - the allegation that then-finance minister Pravin Gordhan had irregularly approved the early retirement of the former deputy commissioner at SARS, Ivan Pillay, with full retirement benefits and his subsequent retention at SARS was substantiated.

The report, in its remedial action, further recommended the president take appropriate disciplinary action against him [Gordhan] for failing to uphold the values and principles of public administration entrenched in Section 195 of the Constitution, and the duty conferred on members of the Cabinet in terms of Section 92(3)(a) of the Constitution, to act in accordance with the Constitution.

Mkhwebane - in court documents - further argues there is no merit in this suggestion [by Gordhan] because in terms of Section 83(a) of the Constitution, the president is the head of the executive.

Power

"His power to appoint ministers, in terms of Section 91[2] of the Constitution, automatically encompasses the concomitant power to take disciplinary action against those he has appointed, included but not limited to their removal, admonishment, warning, etc.

"These powers necessarily form part of the resident's 'residual authority as head of the national executive' and, as the appointing authority, with the express power to hire and fire," the heads of argument read.

Mkhwebane, in court documents, further stated the president's competence to discipline his ministers, outside the power to remove, was "directly acknowledged and acknowledged by the Constitutional Court in the EFF vs Speaker of the National Assembly decision" when [in summary] it issued an order that the president must reprimand the ministers involved pursuant to the Public Protector's remedial action.

"Neither the president nor, with respect, this court has the power to second guess the lawfulness of an order of the Constitutional Court.

"The competence of the president to implement the remedial action is therefore beyond any question," she stated in court documents.

The case continues.

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