Busisiwe Mkhwebane. Picture: SUNDAY TIMES/ALAISTER RUSSELL
Busisiwe Mkhwebane. Picture: SUNDAY TIMES/ALAISTER RUSSELL

President Cyril Ramaphosa has won his politically charged high court battle with public protector Busisiwe Mkhwebane over her order that he take “appropriate disciplinary action” against public enterprises minister Pravin Gordhan with regards to the early retirement he authorised for then deputy Sars commissioner Ivan Pillay. 

The ruling is the latest in a series of court setbacks for the public protector, who is facing calls for parliament to remove her from office. 

Judge Lettie Molopa-Sethosa ruled on Thursday that Ramaphosa’s decision to await the outcome of Gordhan’s legal challenge to the report on Pillay before taking action against him was “reasonable and rational”. She said it was “mind boggling” that Mkhwebane had not agreed to an interdict staying the implementation of her remedial actions in the report.

“Minister Gordhan, like everyone else, has rights. Why now subject him to disciplinary action when there is a review pending?” she asked, adding that the president had in no way refused to take action against Gordhan, should his court action fail.

The judge granted Ramaphosa’s application for an order that he complied with Mkhwebane’s remedial action by providing her with an implementation plan — detailing how he planned to wait for the outcome of Gordhan’s legal challenge to the Pillay report before taking action against him — within the 30-day deadline ordered by the public protector. 

Molopa-Sethosa added that Mkhwebane’s remedial action was “silent on when president must take disciplinary action against Gordhan” and this was left to the president’s discretion. While Mkhwebane in a previous letter gave the president an ultimatum to take action against Gordhan by August 12, the judge stressed that this deadline was not contained in her report. 

She also found that Gordhan and Ramaphosa were correct in their argument that the decision taken by Mkhwebane to oppose the president’s legal action was “inconsistent” with her non-opposition to other interdict applications. 

She ordered Mkhwebane and the EFF to pay the legal costs of their battle with the president and Gordhan. 

The ruling comes after Mkhwebane’s advocate Dali Mpofu — who is also a senior EFF leader — argued last week that Ramaphosa’s application 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.”

The president’s case was linked to the May 24 report Mkhwebane issued on maladministration and impropriety in Gordhan’s approval of early retirement with full benefits for Pillay and his subsequent retention by Sars.