‘Contradictory and non-sensical’: Why Gordhan took round one

Judge Sulet Potterill on Monday ruled that the Public Protector Busisiwe Mkhwebane’s remedial orders against Public Enterprises Minister Pravin Gordhan be suspended.

In her judgment, Potterill established that Gordhan had a prima facie right for the remedial orders to be suspended, pending a court review of her report into the SA Revenue Service “rogue unit”.

Among the remedial actions listed by Mkhwebane include having President Cyril Ramaphosa take disciplinary action against Gordhan, to have Speaker of the National Assembly Thandi Modise refer Gordhan to the Joint Committee on Ethics on Members Interests and for the minister of State Security and the SARS Commissioner to investigate him.

In total there were 10 respondents in the matter, including former SARS Deputy Commissioner Ivan Pillay and former Commissioner Oupa Magashula. Potterill ordered Mkhwebane, the Public Protector’s Office and the EFF to jointly and severally carry the costs of Gordhan, Pillay and Magashula.

Here are seven things Potterill said in her judgment:

1. Suspension not a threat to Public Protector’s Office

Mkhwebane’s counsel argued that granting the interdict would weaken her office and “prevent accountability”. Potterill found otherwise.

“The suspension of the Public Protector’s order does not weaken her office, as she herself has set out, suspension of her orders are granted pending review.”

2. President was right not to act

Part of the Public Protector’s criticism was against President Cyril Ramaphosa for not carrying out her remedial action against Gordhan. The president however argued he could not carry out the remedial action while the matter was subject for review by the courts.

Potterill agreed with Ramaphosa. “The president cannot be criticised for awaiting a court’s decision on suspension of the remedial orders before acting. The president is acting in accordance of the law … before he implements any remedial action.”

3. Harm to Gordhan

Gordhan’s counsel argued that if he were to be disciplined by the president, appear before the parliamentary Ethics Committee and be criminally investigated seemingly by the commissioner of police himself, it would have serious consequences for him.

“The harm to Gordhan speaks for itself. The harm would be irreparable if the interdict is not granted. Being prosecuted, disciplined and investigated most certainly constitutes harm and the harm may be irreparable and irreversable by the time the review application is heard, especially so if the review application is successful,” said Potterill.

4. Contradictory, nonsensical orders

Potterill said the court had to study the report and the remedial orders to ascertain whether there would be irreparable harm to Gordhan. In the process, the court found the orders to be “vague, contradictory and or nonsensical,” said Potterill.

As an example, Mkhwebane orders the president to institute disciplinary action against Gordhan within 30 days of receiving the report, but she also orders Ramaphosa to issue her with a plan for approval of the disciplinary action.

“The order to within 30 days submit a plan for approval detailing the disciplinary action and at the same time ordering that the disciplinary action be taken within 30 days is inexplicable,” said Potterill.

5. No harm to the Public Protector

Potterill said that suspending the remedial action pending the review of the report would cause no harm to the Public protector nor her office.

“This is not a final order and if the review is to be unsuccessful, the remedial actions are to commence. This matter constitutes a clear case where the judicial interference is warranted. The Public Protector and her office can fulfill the constitutional duties of her office with the suspension order not interfering with her constitutional duties at all.”

6. Incidents older than a decade

Potterill also noted that in terms of the Public Protector Act, a complaint relating to a matter dating two years back cannot be entertained, unless special circumstances are warranted. Mkhwebane had failed to provide evidence of special circumstances for her to exercise discretion in this regard.

“The balance of convenience favours Gordhan as the incidents complained of happened a decade ago, there is no urgency in awaiting a determination on the review application.”

7. No other remedy for Gordhan

Potterill also determined that there is no other reasonable option for Gordhan but to seek an interdict.

“There is simply no suitable alternative remedy available to Gordhan in view of the binding nature of the remedial action… Gordhan accordingly also satisfies this requisite of an interim interdict.”