‘Disappointed’ Public Protector Reacts To North Gauteng High Court Gordhan Judgment

Riyaz Patel

Public Protector Busisiwe Mkhwebane has expressed disappointment at Monday’s ruling by Judge Sulet Potterill of the North Gauteng High Court in the case brought by Minister of Public Enterprises against her office.

Pravin Gordhan was seeking an interdict to suspend the implementation of the remedial action set out in paragraph 8 of the Public Protector’s so-called ‘Rogue Unit’ report.

His application was supported by President Cyril Ramaphosa.

Mkhwebane, however, believes that Judge Potterill overreached.

Gordhan’s legal team said it welcomed the ruling suspending Mkhwebane’s remedial action against its client.

“Our client maintains that he has great respect for the office of the PP. However, he doubts the competence, integrity, legal literacy and constitutional grasp of its incumbent, of her powers, duties and functions,” Gordhan’s attorney, Tebogo Malatji said.

“Judge went beyond her scope and dealt with merits of the review application.”

PUBLIC PROTECTOR ADV. BUSISIWE MKHWEBANE

The public protector, blasted Potterill’s judgement, saying, “Instead of confining herself to matters relating to Minister Gordhan’s application for the staying of the implementation of remedial action, the judge went beyond her scope and dealt with merits of the review application.”

Mkhwebane had found, among other things, that Gordhan deliberately misled the National Assembly in failing to disclose a meeting with a member of the Gupta family, established an intelligence unit in violation of intelligence prescripts during his tenure as SARS Commissioner and that Ivan Pillay was appointed Deputy SARS Commissioner and subsequently Commissioner despite not suitably qualified.

The remedial action set out by the public protector included that President Cyril Ramaphosa take appropriate disciplinary action against Gordhan, and that the Speaker of the National Assembly refer the findings against Gordhan to the Joint Committee on Ethics and Members’ Interests for consideration.

“In addressing matters she (Potterill) had not been called upon to hear and pronouncing on issues that were not placed before her, Judge Potterill effectively tied the hands of and pre-empted the outcome of the review court,” Mkhwebane said in a statement.

“This raises the question whether there is still a need to continue with review proceedings,” she added.

Potterill’s ‘nonsensical’ reference is outrageous.

Also of concern to Mkhwebane is Judge Potterill’s use of language which she (Mkhwebane) regards as unbecoming of a judicial officer, specifically, describing the Public Protector’s remedial action “nonsensical.” 

Mkhwebane said she finds the use of this term by the judge as “outrageous” and intends laying a complaint at the Judicial Services Commission.

Further, Mkhwebane said, “it is curious that the judge deemed it fit to ventilate Pillay’s qualifications or lack thereof and pronounce on the issue, and yet held that the disparaging remarks that Minister Gordhan made against Adv. Mkhwebane in his application for both the review and the interdict.”

The Public Protector “has also not taken kindly” to the fact that, in her ruling, Judge Potterill relied on “correspondence between her office and President Ramaphosa even though the letters concerned had nothing to do with the “Rogue Unit” matter before her but related instead to the Pillay pension investigation.”

In addition, Mkhwebane said, “these documents were only handed in at court on the day of the hearing and other parties had not been favoured with an opportunity to engage on them.”

Another source of disquiet for Mkhwebane is the “recent scourge of separating her from the office she holds,” which Judge Potterill now appears to be perpetuating.

In this instance, “she made a personal costs order even though none of the parties argued for that,” Mkhwebane said.

Constitutional Law expert Prof. Shadrack Gutto believes the judgement is far reaching and says the Constitutional Court must express itself on this matter. 

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