Advocates Dali Mpofu, left, and Tembeka Ngcukaitobi during proceedings in the Pretoria high court on Thursday. Picture: REUTERS
Advocates Dali Mpofu, left, and Tembeka Ngcukaitobi during proceedings in the Pretoria high court on Thursday. Picture: REUTERS

Public protector Busisiwe Mkhwebane’s court battle with President Cyril Ramaphosa over the disciplinary action she insists he must take against minister Pravin Gordhan was dominated by her advocate’s politically explosive attacks on the president, Gordhan and the judge who ruled in the minister’s favour earlier this week. 

Her advocate, Dali Mpofu, is the chair of the EFF which has called for Ramaphosa to fire Gordhan.

Ramaphosa and Mkhwebane locked horns on Thursday in the high court in Pretoria. Ramaphosa is asking the court to stay Mkwebane’s order that he takes action against Gordhan in relation to the early retirement granted to then SA Revenue Service (Sars) deputy commissioner Ivan Pillay.  

Should Mkhwebane fail to show that she has a solid legal basis to oppose Ramaphosa’s application, she may face yet another court decision that raises questions about her competence and impartiality. Her credibility will continue to be eroded, giving ammunition to those in parliament and civil society who want her removed.

Should Ramaphosa lose, he will face accusations that he is no different to Zuma, by failing to comply with the remedial action of a constitutionally protected chapter nine institution. Such accusations will provide powerful ammunition to Ramaphosa’s opponents within the ANC.

Gordhan, who is public enterprises minister,  has been at the forefront of Ramaphosa’s reform agenda and attempts to clean up state-owned enterprises.

Judgment in the case has been reserved. Judge Lettie Molopa- Sethosa hinted she could hand down her judgement next Thursday.

Arguing for Mkhwebane, Mpofu insisted that Ramaphosa’s court bid to stay the implementation of remedial action she ordered against Gordhan in the Pillay matter would result in a “bloodbath” of SA’s democracy, if it succeeded.

“If our courts are willing to endorse that kind of thing, then we might as well just close up, not just the office of the public protector but the whole country,” Mpofu argued.

“Because if that is the kind of degeneration of justice and abuse of power that we are going to tolerate, then nothing will stop the bloodbath of our democracy.”

Advocate Hamilton Maenetje, arguing for Ramaphosa, denied Mpofu’s accusations that the president had shown significantly more disrespect to the public protector than his predecessor Jacob Zuma.

Zuma was found to have failed to uphold the constitution in his failure to comply with advocate Thuli Madonsela’s order to repay a portion of the state money spent on non-security upgrades to his Nkandla homestead.

Mpofu said Ramaphosa was “far worse” than Zuma because he had “aligned himself” with the “insults” levelled against Mkhwebane by Gordhan, who has slammed her report on Pillay as being replete with legal and factual mistakes, and driven by political motives. Maenetje maintains that this claim is “unfair and unjustified in the extreme”, as Ramaphosa’s application was focused on “legal issues”.

In Thursday’s case, Ramaphosa’s lawyers contend that the president’s decision to await the outcome of Gordhan’s court challenge to Mkhwebane’s report on Pillay before he takes any action was effectively vindicated by a separate court ruling on Monday by Judge Sulet Potterill.

The judge not only granted Gordhan’s application for an interdict staying Mkhwebane’s remedial action against him in her Sars rogue unit report, but also found that Ramaphosa could not be faulted for deciding not to take action against the minister, pending the outcome of his review of the report.  

“The president cannot be criticised for awaiting a court’s decision on suspension of the remedial action, and the review, before acting. The president is acting in accordance with the law of the land before he implements any remedial action.”