Pravin Gordhan. Picture: FREDDY MAVUNDA
Pravin Gordhan. Picture: FREDDY MAVUNDA

Public enterprises minister Pravin Gordhan will have to wait a few more days to find out if implementation of the remedial action in public protector Busisiwe Mkhwebane’s report into the SA Revenue Service’s (Sars’) so-called rogue unit is suspended pending a judicial review. 

The high court in Pretoria on Tuesday reserved judgment in the urgent application brought by Gordhan to interdict the remedial action pending an  application to have the damning report reviewed and set aside. 

This was the first application to be heard by the court in the legal battle between Gordhan and Mkhwebane. The minister is also taking her report on the early pension payout of former Sars commissioner Ivan Pillay on judicial review. 

Gordhan’s application was supported by President Cyril Ramaphosa, Pillay and another former Sars commissioner, Oupa Magashule. The two commissioners were also mentioned in Mkhwebane’s report. The public protector and the EFF opposed the application.

Judge Sulet Potterill, after hearing arguments all day, said the matter was “crisp” but wanted a few days to formulate her judgment.

She got reassurance from the public protector’s counsel that the remedial action would not be enforced before she delivered her judgment.

A two-part application was brought by Gordhan after Mkhwebane found that he had violated the constitution when he established an intelligence unit at Sars. She also found that he had deliberately misled parliament about meeting the controversial Gupta family. 

Mkhwebane directed Ramaphosa to take appropriate disciplinary action against Gordhan within 30 days and directed National Assembly speaker Thandi Modise to refer the minister’s violations to the joint committee on ethics and members’ interests for consideration.

She also directed that the SA Police Service commissioner investigate, within 60 days, the conduct of Gordhan, Pillay and other officials involved in the Sars unit, for violating the constitution and the National Strategic Intelligence Act, and told National Prosecuting Authority head Shamila Batohi to finalise the court case against former Sars officials.

Madiba Street in front of the North Gauteng High Court in the Pretoria CBD has been temporarily closed for traffic due to dozens of protesters singing and chanting in front of the court. The two groups are protesting in support of public protector Busisiwe Mkhwebane as the court is hearing an urgent application by public enterprises minister Pravin Gordhan, who's challenging the implementation of Mkhwebane's remedial actions against him.

Advocate Thabani Masuku, for the public protector, told the court that his client was opposing the interdict sought by Gordhan because he had insulted her in his affidavit to the court. 

He said the allegations made by Gordhan that Mkhwebane was abusing her constitutional powers, and promoting and supporting corruption and state capture, as well as pursuing corrupt political interests to remove him, was damaging to her office and violated her dignity. 

In response to this, Gordhan’s counsel, Wim Trengove, said that it was Mkhwebane herself who had done “more harm to the standing of that office”. He cited the adverse court judgments against her and the most recent Constitutional Court judgment on Monday. 

Masuku argued that if the court granted the application it would be encroaching on the principle of separation of powers by stopping the president and state institutions from exercising their constitutional duties, and that officials who were found to have done wrong had to be held accountable.

Ramaphosa had written to the public protector following the release of her report and informed her that he would await the outcome of Gordhan’s review application in the high court before implementing her remedial action.

Trengove argued that there was no reason for the urgent implementation of the remedial action. “In this case, the consideration of separation of powers operates in favour of the suspension of the implementation of the orders,” he said.

He questioned whether the public protector had the right to tell the president, the speaker of the National Assembly, the head of the National Prosecuting Authority and the police how to exercise their duties.

He told the court there would be no prejudice against the public protector if it interdicted implementation of the remedial action. However, it did  prejudice Gordhan as he was subjected to disciplinary proceedings while he was taking the report on review.