Public Protector takes another costly punch

Court finds that her orders contain much that is ‘vague, contradictory, and/or nonsensical’.
The courts are yet to decide whether Public Protector Busisiwe Mkhwebane’s report into the alleged rogue unit at Sars should be set aside. Until then, she has been prohibited from enforcing the remedial action contained in the report. Picture: Moneyweb

The Pretoria High Court has granted public enterprises minister Pravin Gordhan’s urgent interdict to suspend the remedial action ordered by the Public Protector (PP), pending the final review of the PP’s report.

In addition, the PP and the office of the PP are interdicted from enforcing the remedial orders pending the final review.

Read: Gordhan challenges public protector report

The office of the Public Protector, Busisiwe Mkhwebane and the Economic Freedom Fighters (EFF) are ordered to pay, jointly and severally, the costs of Gordhan and fellow respondents former South African Revenue Service (Sars) deputy commissioner Ivan Pillay, and former Sars commissioner Oupa Magashula. Mkhwebane is thus personally responsible for one third of these costs.

The PP and the EFF argued that this matter was not urgent.

The court however found that this matter was “inherently urgent”. It held that there would be no harm to the PP in awaiting the outcome of the review decision, but that there would be harm to Gordhan if the interdict was not granted.

Read: Pressure mounts on public protector to quit

The court considered whether the granting of an interim interdict would fail to promote the “objects, spirit and purport of the constitution”. It noted that an interlocutory interdict is “designed to protect the rights of the complaining party pending the application to establish the rights of the parties”. The objective is that the ultimately successful party should receive adequate and effective relief.

The court agreed with Gordhan that the PP would not normally oppose a request to suspend the PP’s remedial action pending a review.

The court referred to President Cyril Ramaphosa’s letter to the PP, in which it is stated that:

  • It will be inappropriate for the president to take action against Gordhan when there is a dispute pending before the high court over the legalities of the findings, and the president’s power to exercise any disciplinary action (in the absence of any employment relationship) is also being legally contested in that dispute;
  • The president has taken note of the findings against Gordhan;
  • The president will wait for the review proceedings to clarify what disciplinary powers the constitution allows him to exercise over Gordhan, and whether there are lawful grounds to exercise such disciplinary powers.

In the PP’s reply to the president’s assertion that a review application stays the implementation of any remedial action, she replied that this “is a sheer display of cluelessness on the person giving such advice”.

She further declares that his letter is based on “the wrong understanding of the law” and that refusing to carry out the remedial action is tantamount to the president’s failure to uphold the constitution.

In a further letter she uses stronger words, threatening that the president’s “persistence on wilful non-compliance” with her remedial action is “contemptuous” of her office and is a “breach of the Honourable Presidents constitutional duties” (sic).

She gets carried away and hints at an impending constitutional crisis if the president does not act as she has mandated him to.

The court noted that the PP did not set out why she had jurisdiction to claim that there were special circumstances for entertaining a complaint that was reported more than two years after an incident had occurred (in this case, the investigative unit was established in 2007). Nor could she identify the special circumstances.

The court found that Gordhan had a prima facie right for an interim interdict to be granted.

The court rejected the PP’s argument that the suspension order would weaken her office and weaken accountability, and that allegations made by Gordhan undermine “the dignity, independence, impartiality and effectiveness of the PP”.

The court held that if the review application found the PP to be biased and acting with an ulterior purpose, this would constitute grounds for the review of her decision.

The court also pointed out that the suspension of the PP’s order does not weaken the office of the PP.

Read: Public protector’s errors swamp any merits of Bankorp investigation

The court summarised its findings as follows: “This court need not and did not rely on the review grounds that the PP acted with ulterior purpose and bias when finding as the PP did and ordered as she did. This is a debate for the review application.”

The court also referred to the PP’s orders as being “vague, contradictory and/or nonsensical”.

‘Inexplicable and contradictory’

The court noted inexplicable and contradictory orders that had to be carried out simultaneously within 30 days; that a plan detailing the disciplinary action had to be submitted within 30 days; and at the same time, disciplinary action had to be taken within those 30 days. The order against the Speaker of the National Assembly, Thandi Modise, was similarly contradicted in that the speaker was given 14 days in which to submit the findings against Gordhan to the Joint Commission on Ethics.

The court also pointed out the PP’s lack of understanding of the law in  that a violation of section 209 of the constitution and section 3 of the National Strategic Intelligence Act would not constitute a criminal offence.

The PP is an office of critical importance in upholding our constitution, a central force in fighting corruption, unlawful enrichment and prejudice, and in upholding good governance. The PP cannot be found to be biased, nor acting with an ulterior motive. Busisiwe Mkhwebane will be defending a number of court reviews over the foreseeable future. The judgments will be critical for her future, as well as South Africa’s.

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The judicial system in this country is the thin line between sanity and anarchy. Thank goodness.

Meantime Busi better ramp up her crowdfunding because there’s a lot more costs coming her way. She’s taking this one to the concourt where she’s bound to pick up another charge. Pretty soon, the next time she arrives there they may feel inclined to give her the entire bill.

That might then do the trick, although she does seem intransigent enough to keep on bashing away.

After all, only God can remove her it seems.

Informative commentary Barbara, thanks.

I’m interested to see the organisational structure of the PP’s Office, who her internal legal advisors are and how many of them were in office with Madonsela.

Then we might begin to see to what extent the Office of the Public Protector has itself been captured. It’s strange that nothing on this topic has been published or have I missed it?

Interesting point you raise. Given the almost farsical misunderstanding of the law in her reports (as raised by Prof Pierre de Vos and several judges), one has to ask whether she is being deliberately sabotaged by her staff to ensure these frivolous investigations fail.

She is an advocate and bears ultimate responsibility for signing off her reports.

would be interesting to see in time and money terms, how much has been wasted so far on fruitless cases, just in terms of the current pp’s own salary and her internal legal advisors.

Once a person is in the “Public Protector” position no external influence or personal / political vendetta forms part of that persons job description – Madonsela was a fine example of how that post should be fulfilled.

We need a PP but we cannot have a system where that person if compromised causes this much harm and cannot easily be kicked out.

Perhaps a better way is that all PP reports are subject to a review panel of 3 judges before being issued. Even better, the panel should review cases before they are started and review which complaints are gathering dust instead of being investigated.

The present PP’s thick skin is something to behold.

Actually it’s her all-round thickness, particularly in matters of Law, that is in issue.

It would be interesting to calculate whether the Dunning-Kruger gap (the difference between ability and self-ranking) is greater in her than in Hlaudi Motsoeneng. The competition would be fierce.

Nonsensical is such a nice word and maybe a bit misleading. Below are some synonyms off the internet that gives more meaning to the judgement.

: foolish, insane, stupid, lunatic, idiotic, illogical, irrational, zany, senseless, absurd, silly, inane, asinine, hare-brained, ridiculous, ludicrous, wild, preposterous, fatuous; informalcrazy, crackpot, crackbrained, nutty, wacky

Can we please add incompetent, repeat INCOMPETENT

How long will this insanity continue…in the meantime, the real issues like poverty, education, over population, service delivery, flagging tax revenues and a widening deficit continue with little hope of solutions.
The PP should do the right thing and gracefully resign and admit defeat in the face of a still working Judicial system.

The damage done to this institution is immense. Even if the PP somehow manages to cobble together a coherent, honest and legally rational report she is irretrievably compromised.

But it is only because the PP is taken on independent judicial review that her moral and legal and other flaws are exposed.

Almost every decision by an ANC deployee would be struck down, if subjected to review by an independent expert in that field.

We must simply accept that every ANC decision is the worst possible one.

I can’t see this latest setback discouraging the Public Destroyer, she has after all raised R50,000 in crowfunding in a matter of weeks 🙂

It does beg the question of who is personally funding her in the dark alleys of corruption?

Easy, the PP like her fellow ANC and EFF deployees, “good” and “bad”, are funded by four types of tax, the first two of which are the allocation by the fiscus and regulatory BEE deals.

The other more lucrative types are paid taxes, that are funneled through provincial and local government and SOEs (On-Point, VBS, Eskom, etc.) or unpaid taxes like that of the organised crime networks of Mazotti and others.

are we SURE it is PUBLIC Protector? 🙂

Thanks goodness for our impartial Judiciary.

These report goes to show how frivilious and bias ,and opportunistic action are been taken against fighters of corruption.

it is now coming a joke that all losing litigants cry foul,and want to cramm our constitutional court,with appeal

The history books will give context to the scope and scale of corruption our country has endured over the last decade. Only then will we realize how vast the corruption network was and what damage it has wreaked on us all. The legal system is the only way we can fight our way out of this maze of corruption.

Dear Busi,
At this stage it is a good idea to look at little zuma and little maley and acting for them as not in your best interests, it is costing you a fortune!! Also consider thanking first before opening your mouth … a generally good policy!
But if you dont listen, the courts will oblige you until you decide to listen!! The choice my dear is up to you!!
But from the bottom of our collective SA heart we want to thank you for the entertainment!
Yours sincerely the SA Public!

The problem with this is that it compromises any good work she might be doing e.g. there is no doubt that CR lied at least twice about the ‘500K’. She has no choice but to resign.

Thank you for the excellent summary, as always.
We can be grateful that we still have a functioning judiciary. Imagine a tin pot dictatorship with a spiteful person like the current PP trumping up charges against all who threaten the tin pot hierarchy. May she go broke (or be fired) soon.

End of comments.

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