High Court to rule on Gordhan-Mkhwebane legal battle

The Gauteng High Court in Pretoria will rule on Monday whether the remedial action laid out by Public Protector Busiswe Mkhwebane against Minister of Public Enterprises Pravin Gordhan, should be suspended.

Judge Sulet Potterill will hand down her decision at 09:30.

Gordhan applied for an urgent interdict last Tuesday to suspend the remedial action in the South African Revenue Service (SARS) so-called ‘rouge unit’ report against him, while he seeks a full judicial review.

The court ruling comes a week after a majority ruling by the Constitutional Court found Mkhwebane had not acted in good faith and told false and misleading statements, in the litigation around her Absa/Bankorp report. She was ordered to pay 15% of the South African Reserve Bank’s costs and there have been renewed calls for Parliament to remove her and the Legal Practice Council to strike her off the advocates roll.

Mkhwebane found, earlier in July, that the establishment of the unit in 2007 was illegal and that it conducted unlawful intelligence operations. Gordhan was the tax agency’s commissioner at the time. Her report stated that SARS failed to follow procurement rules when it bought spying equipment for its operations. In the same report, she also found that Gordhan lied to Parliament by not disclosing a meeting where a member of the Gupta family may have been present.

Her remedial action stated that President Cyril Ramaphosa should discipline Gordhan within 30 days of her report. Mkhwebane also directed the police and National Prosecuting Authority to consider criminal charges against him She further gave speaker of Parliament Thandi Modise 14 days to refer the public enterprises minister to Parliament’s ethics committee to be investigated for violating the ethics code. This deadline passed on July 25.

Urgent deadline

Gordhan’s legal team told the court that the August 4 deadline for Ramaphosa to act against Gordhan informed the urgency of their application to have the remedial action suspended.

His legal documents also stated that the SARS investigative unit was established legally and people opposing it were threatened by the work to root out tax dodgers. Gordhan also noted that Mkhwebane had not made any adverse findings against the conduct of the unit

Gordhan’s court documents further stated that Mkhwebane had failed to give the president, the speaker of Parliament, the minister of state security, the national director of public prosecutions and the commissioner of police opportunities to make representations to her before making remedial orders against them

The presidency supported Gordhan’s application.

Mkhwebane’s legal team, however, argued that the implications of interdicting the remedial action would have serious implications for the status of the office.”

They further submitted that the application for the urgent interdict was an “assault to the office of the Public Protector.

The EFF supported Mkhwebane in court proceedings and leader Julius Malema told supporters outside that the party would take the matter to the Constitutional Court if Gordhan was granted an urgent interdict.