Busisiwe Mkhwebane. Picture: SUPPLIED
Busisiwe Mkhwebane. Picture: SUPPLIED

The Constitutional Court has dismissed appeals by public protector Busisiwe Mkhwebane and the EFF against a court ruling that interdicted her order that President Cyril Ramaphosa take disciplinary action against public enterprises minister Pravin Gordhan, over the Sars “rogue unit”.

The high court in Pretoria last year granted Gordhan an interdict staying Mkhwebane’s remedial action in her Sars report until such time as Gordhan’s legal challenge to that report was finalised.

Mkhwebane had argued to the Court that the order granted by the high court judgment will “strip the public protector of the support and assistance necessary to promote constitutional governance” and had “the effect of rendering the public protector’s constitutional work ineffective”.

The Court said it was not persuaded that the high court misdirected itself on the facts.

“I am of the opinion that [the high court ruling] struck a fair balance between the rights and interests of all the parties concerned. It identified the correct test, applied this test to the facts, then arrived at a conclusion at which any reasonable court would have arrived,” acting chief justice Sisi Khampepe said in the judgment.

“There is no foreseeable irreparable harm that the public protector would suffer. The interim interdict would not thwart her constitutional mandate and it would not offend any of her powers and functions as set out in the constitution.”

The Court did, however, uphold the appeal against the high court’s personal cost order against Mkhwebane, and set it aside, saying, “Personal cost orders are punitive in nature and the high court failed to provide any reasons to justify an order of this nature.”

In her Sars report, Mkhwebane found that an investigating unit of the tax agency established in 2007 — later referred to in media reports as a rogue unit — was unlawfully formed and had conducted illegal intelligence-gathering operations.

She ordered Ramaphosa to take action against Gordhan over his alleged role in the establishment of that unit within 30 days, and also ordered the National Prosecuting Authority to investigate possible violations of the constitution and intelligence legislation.

Gordhan’s lawyers said in a statement on Friday that he welcomed the judgment.

“The Constitutional Court judgment reaffirms the rights of persons to obtain interim relief, even against the public protector, in circumstances where the test as set out in prior Constitutional Court judgments has been met.

This was the case with Gordhan, who obtained an interim interdict to protect his right not to be subjected to, among others, undefined disciplinary action by the president of the Republic of SA pending a judicial review of the findings and remedial actions of the public protector.

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