Public protector Busisiwe Mkhwebane. Picture: SUNDAY TIMES/ESA ALEXANDER
Public protector Busisiwe Mkhwebane. Picture: SUNDAY TIMES/ESA ALEXANDER

President Cyril Ramaphosa’s lawyers have denied that the state attorney’s threats that public protector Busisiwe Mkhwebane could face a personal costs order if she opposes his legal bids to stay remedial action against public enterprises minister Pravin Gordhan amounts to an attempt to “badger” Mkhwebane.

Advocate Hamilton Maenetje, arguing for Ramaphosa in the Pretoria high court on Thursday morning, disputed what he described as “emotive” accusations by the EFF about the letter, which he said the party seemed to view as “another sign of the president trying to badger the public protector”.

“It wasn’t a letter from the president saying, if you don’t withdraw I’m going to seek a special costs order … it is not, it is the initiative of lawyers saying: here is a clear judgment [the ruling granted by judge Sulet Potterill on Monday, in which she granted a stay of implementation to Gordhan in his SA Revenue Service (Sars) rogue unit report challenge], just give us a stay and let’s all go home, we will wait for the review application to be concluded.”

The “EFF inference of our badgering is unfounded”, he said.

Ramaphosa’s lawyers insist that he has not failed to comply with Mkhwebane’s orders that he take appropriate disciplinary action against Gordhan over the early retirement he authorised for former Sars commissioner Ivan Pillay — and says it is “unreasonable” for Mkhwebane to claim that he did.

Maenetje stressed that Mkhwebane had not given any deadline by which she demanded that he take “appropriate disciplinary action” against Gordhan, who is currently challenging Mkhwebane’s findings against him in the Pillay case, and the so-called Sars rogue unit investigation.

What she had ordered him to do, Maenetje said, was to provide an “implementation plan” detailing the action he would take within 30 days of the release of the Pillay report. The president had done so, providing a plan that explained he would await the outcome of Gordhan’s Pillay report review before taking any action against him.

This decision to wait, he says, “breaches no provision in the remedial action” and is “precisely in line with our constitution”.

Maenetje further argued that the president’s approach had been endorsed in the ruling given by Potterill earlier this week, where she found that Ramaphosa could not be faulted for waiting for the outcome of Gordhan’s challenge to Mkhwebane’s Sars rogue unit before taking action against him.

“The public protector has only one interest to protect here and that’s the public interest,” Maenetje said, adding that it was in the interests of justice to stay the implementation of remedial action ordered against Gordhan until his review was finalised.

He said Mkhwebane had not said anything about what the consequences would be if Gordhan were removed from his position on the basis of Mkhwebane’s report, but then later successfully overturned that report.

Ramaphosa is seeking an order that he did, in fact, comply with Mkhwebane’s remedial action in the Pillay matter. In the alternative, he wants the court to stay the implementation of the remedial action ordered by Mkhwebane pending Gordhan’s review. The president also wants the high court to rule on what power he has to discipline ministers, outside of removing them.