Public Protector Busisiwe Mkhwebane. Picture: REUTERS/Mike Hutchings
Public Protector Busisiwe Mkhwebane. Picture: REUTERS/Mike Hutchings

Public protector Busisiwe Mkhwebane is considering lodging a complaint against Pretoria High Court judge Sulet Potterill, who ordered that the remedial action against public enterprise minister Pravin Gordhan be suspended. 

Potterill on Monday ordered that the remedial action in Mkhwebane's report on the SA Revenue Service’s so-called rogue unit be suspended pending a review application lodged by Gordhan. 

She found that Gordhan had a prima facie case for an interim interdict and said there was simply no suitable alternative remedy available to him in view of the binding nature of the remedial action. 

Mkhwebane, among other things, directed President Cyril Ramaphosa to take appropriate disciplinary action against Gordhan within 30 days after her investigation found that Gordhan violated the constitution when he set up the so-called Sars rogue unit, which is alleged to have illegally spied on politicians.

The public protector also directed that the police commissioner to investigate within 60 days the conduct of Gordhan, former deputy commissioner Ivan Pillay and other officials involved in the Sars unit, for violating the constitution and the National Strategic Intelligence Act, and told National Prosecuting Authority (NPA) head Shamila Batohi to finalise the court case against former the Sars officials.

Mkhwebane said she was disappointed with the judgment and that she was of the view that Potterill had "overreached".

"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," she said. 

The public protector said the judge effectively tied the hands of and pre-empted the outcome of the review court, which raised questions about whether there was still a need to continue with the review process. 

In the judgment Potterill said it would be remiss of the court not to comment on Mkhwebane's remedial orders and found that most were “vague, contradictory and/or nonsensical”.

Mkhwebane called this "outrageous" and raised concern over the language Potterill used, saying this was unbecoming of a judicial officer and which did not accord with the decorum of the court. 

Mkhwebane will be appealing Monday's judgment.

quintalg@businesslive.co.za