No reason to urgently implement protector’s Sars remedial action, court hears
Trengove argues that Mkhwebane has not given Gordhan, or anyone else she has made orders against, the chance to have their say regarding the remedial action
There is no reason for the urgent implementation of the remedial action ordered by public protector Busisiwe Mkhwebane against public enterprises minister Pravin Gordhan, in relation to the so-called SA Revenue Service (Sars) rogue unit, the high court in Pretoria heard on Tuesday.
Advocate Wim Trengove, for Gordhan, said the conduct Mkhwebane wanted the minister to be punished for happened 10 years ago, yet she was insisting that the president and others take action against him within 30 days.
“In this case, the consideration of separation of powers operates in favour of the suspension of the implementation of the orders,” he said.
Trengove questioned whether the public protector had the right to tell the president, the speaker of the National Assembly, the head of National Prosecuting Authority (NPA) and the police how to exercise their duties.
The court is hearing the first part of Gordhan's application to the court to suspend the implementation of the remedial action in the report pending the actual review of the report. The public protector and the EFF are opposing the application.
Earlier in July, Mkhwebane found that Gordhan had violated the constitution when he established an investigative unit at Sars when he was commissioner.
She directed President Cyril Ramaphosa to take appropriate disciplinary action against him.
She has also directed, among other things, that the SA Police Service commissioner investigate, within 60 days, the conduct of Gordhan, former Sars deputy commissioner Ivan Pillay and other officials involved in the Sars unit, for violating the constitution and the National Strategic Intelligence Act.
Trengove argued that Mkhwebane had not given Gordhan, or anyone else she made orders against, the opportunity to have their say regarding the remedial action.
That included not giving President Cyril Ramaphosa, National Assembly speaker Thandi Modise, the national director of public prosecutions and the police commissioner the opportunity to address her on the remedial action.
Trengove said Mkhwebane was obliged to do this in terms common law and under the rationality requirement of the rule of law.
He said when Gordhan asked to make representations on the remedial action, Mkhwebane ignored him and just released her report.
Trengove told the court there would be no prejudice against the public protector if it interdicted the implementation of the remedial action, but did prejudice Gordhan as he was subjected to disciplinary proceedings while he was taking her report on review.