Public protector Busisiwe Mkhwebane. Picture: REUTERS
Public protector Busisiwe Mkhwebane. Picture: REUTERS

The public protector on Thursday asked the Constitutional Court to help ensure that the executive understands its role in relation to how it should work with her office.

The hearing was the culmination of a fraught battle between Busisiwe Mkhwebane and members of the executive, such as President Cyril Ramaphosa and public enterprises minister Pravin Gordhan.

Over the past year Mkhwebane has been accused of perpetuating factional battles rooted in the ruling ANC and having ulterior motives in her investigations and findings. Various courts, including the Constitutional Court itself, made several findings against her that suggested she was not credible.

“We need help. Because if this public protector will work with the executive, this matter is one which this court should entertain,” Thabani Masuku, counsel for the public protector, told the court.

“The help we really need is the focus on the duties [that] each respective party, each player in the constitutional framework has.” 

The public protector also wants the court to weigh up the right to take her report on review against the constitutional obligations the executive has to her office. She is seeking clarity on whether a court, through an interim interdict, can set aside her findings pending a review.

Masuku, as well as Tembeka Ngcukaitobi representing the EFF, were grilled by the justices on why the test used by the high court when it set aside her findings was not sufficient.

The justices also wanted to know what harm granting the interdict did, given the severity of the actions which Ramaphosa could take, which included firing Gordhan from his post. 

Ngcukaitobi said the routine granting of an interdict against the public protector would severely affect ordinary South Africans, who use the office as a way of getting recourse against abuse by public functionaries. He said it reduced the office to a “paper tiger”.

He said an interim interdict was a draconian order which had an effect on the accessibility and effectiveness of the public protector that should be taken into consideration

While Mkhwebane had initially asked the apex court for direct access to appeal against the judgment by high court judge Sulet Potterill, she later wanted to withdraw the application, but the court decided to hear the matter. 

Justice Zukisa Tshiqi, however, said that the high court judgment did take into account the effects of such judgments. She said Mkhwebane could fulfil her duties without interference and that it was not necessary to develop a new test.

Ngcukaitobi argued that the EFF wanted something “wider”, which looked at the principle of accessibility and effectiveness from the perspective of the complainant. 

Tshiqi said that she tended to agree with Potterill, as the public protector’s report was already out there and that she was free to deal with other matters.

The high court in Pretoria earlier this year interdicted the remedial action contained in a report in which Mkhwebane instructed Ramaphosa to take action against Gordhan for his alleged role in the SA Revenue Service’s so-called rogue unit and for allegedly misleading parliament about a meeting Gordhan had with the Guptas.

The subject matter is steeped in historical controversy, as the saga of the rogue unit has been raised, debunked and raised again numerous times over the past decade, with the most recent focus coming from Mkhwebane and the EFF.

After the release of Mkhwebane’s report, Gordhan filed an application to review it. He  sought and was granted a court interdict setting aside the implementation of remedial action pending the outcome of the review. 

Gordhan’s counsel Wim Trengove labelled the remedial action “incoherent, unlawful and bizarre”.

He said the remedial action went to the heart of the president’s constitutionally provided discretionary powers, which is appointing his cabinet. It went further to give instructions to other functionaries that derive their powers from the constitution.

Judgment was reserved. 

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