Advocate Dali Mpofu. Picture: SOWETAN
Advocate Dali Mpofu. Picture: SOWETAN

The public protector’s advocate has argued that the effect of the president not taking action against public enterprises minister Pravin Gordhan over the early retirement of former SA Revenue Service (Sars) commissioner Ivan Pillay will result in a “bloodbath” for the country’s democracy.

President Cyril Ramaphosa delayed taking action as a result of Gordhan’s pending legal challenge to the findings made against him over the Pillay saga.

“The whole country must be held at ransom for four to five years, until Mr Gordhan and Mr Ramaphosa are out of office to do a simple disciplinary procedure, versus what is on the other side of the scale? The inconvenience of Mr Gordhan driving to the president’s office and just being told: look, don’t do this again,” advocate Dali Mpofu argued in the Pretoria high court on Thursday afternoon.

Ramaphosa has asked for a ruling staying the implementation of public protector Busisiwe Mkhwebane’s order that he take “appropriate disciplinary action” against Gordhan until such time as Gordhan’s review of her Pillay report is completed.

Mpofu contends that, if granted, this order will result in the “entire country” being “paralysed” and the office of the public protector being “killed and blunted, everything that we stand for in this democracy must be undermined for the convenience of Mr Gordhan, one man”.

“What is that?” Mpofu asked, adding that “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.

“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.”

Ramaphosa argues that he is trying to avoid making an “unreasonable” decision about Gordhan, as his legal challenge to Mkhwebane’s report is “not frivolous”. But Mpofu does not accept that argument.

He also rejected arguments from lawyers for Gordhan and the president that it was common practice for the public protector to not oppose applications for stays of her remedial action pending legal review. Lawyers for the president have contended that the ruling given by the high court on Monday, in which judge Sulet Potterill granted Gordhan’s application for a stay of Mkhwebane’s remedial action against him in her Sars “rogue unit” case, clearly supported his stance in waiting for the outcome of Gordhan review.

But Mpofu criticised Potterill’s ruling as “embarrassing” and legally ill-founded.

“Is this the forum to criticise the judge?” asked judge Lettie Molopa-Sethosa.

Mpofu insisted that he needed to criticise the ruling “because I have to”, as it formed a basis for the president’s application today.

The hearing continues.