Act against Gordhan to avert a ‘Constitutional crisis’ – Mkhwebane tells Ramaphosa

Public Protector Busisiwe Mkhwebane and President Cyril Ramaphosa have been at loggerheads for weeks over the implementation of one of her reports, official correspondence attached to court papers reveal.

Mkhwebane has accused Ramaphosa of failing to uphold the integrity of the Constitution and said he would need to act to implement the remedial action or risk causing a “Constitutional crisis”.

On Monday, Ramaphosa filed urgent court papers seeking a declaratory order that confirms he has complied with remedial action set forth by Mkhwebane in her report over the early retirement and pension payout of former SARS deputy commissioner, Ivan Pillay.

It further seeks a stay order which would halt the implementation or enforcement of the remedial action. 

Mkhwebane found that then finance minister Pravin Gordhan had violated the Constitution for approving Pillay’s early retirement and directed Ramaphosa to take disciplinary action against him.

Ramaphosa responded to the report in writing on June 19, 2019, saying he noted the report and was as per the remedial actions, providing feedback.

He has chosen to wait for the outcome of a review application brought by Gordhan.

Mkhwebane disagreed with this approach, and fired back, accusing Ramaphosa of being in contempt of the office of the Public Protector.

He has now approached the court to clarify that his decision to await the outcome of the review application is rational.

Attached to Ramaphosa’s affidavit in support of the application however, is a series of explosive letters that show just how acrimonious the dispute has become.

June 19, 2019

Ramaphosa informs Mkhwebane of his intention to await the outcome of the review application, which he states constitutes his ‘Implementation plan’ as asked for by the Public Protector.

“If you are not so satisfied, and require me to exercise any disciplinary powers I may have over Minister Gordhan before his review proceedings have been finally determined, I invite you to approach the High Court for an order compelling me forthwith to do so,” the letter reads.

 June 26, 2019

Mkhwebane fires back, and gets off the mark by pointing out that the Constitutional Court judgment on the Nkandla saga confirmed that remedial action set forth by the Public Protector was binding, unless a court order was obtained setting it aside.

She states that Ramaphosa’s letter is based on the “wrong understanding of the law” and on a “mere assurance by a third party that the President should not comply with my remedial action”.

“The President’s refusal to act on my remedial action is a failure on the President’s part to uphold the Constitution.”
 
July 3, 2019

Ramaphosa responds, saying Mkhwebane had misunderstood his first letter and that he had not refused to act on the remedial action.

He states that he concluded there was not yet any appropriate disciplinary action to take, as Mkhwebane had directed and he denies that he has acted contrary to the Constitution.

“As proceedings in the review applications unfold, the state of affairs in relation to appropriate action may well change,” Ramaphosa said.

July 9, 2019

Mkhwebane says the legal advice Ramaphosa is relying on is incorrect and would “lead to a constitutional crisis”.

“I record once more that the Honourable President is currently acting in a manner that is inconsistent with the Constitution.”

 
July 11, 2019

State Attorney RJ Sebelemetsa informs Mkhwebane that legal action will be taken to secure an order stating that Ramaphosa had not ignored the remedial action and to stay the implementation of the remedial action until such a time as Gordhan’s review application was finalised.

“It is unfortunate that it was (at all) necessary to bring this application. More so, in the context of the political climate and events that have played themselves out in the media in the recent past,” Ramaphosa’s affidavit reads. 

Adding that it was a “constitutionally unpalatable” state of affairs for the Public Protector, the President and the Minister being embroiled in litigation against each other. 

“I bring this application then, as a measure of last resort and on invitation from the Public Protector…Thus, there is no controversy that arises in this application. It is not a political matter but solely a legal one.”