President Cyril Ramaphosa has filed a supporting affidavit in the North Gauteng High Court relating to Public Enterprises Minister Pravin Gordhan’s court application to suspend Public Protector Busisiwe Mkhwebane’s remedial orders.
Gordhan filed his court bid in response to Mkhwebane’s controversial report relating to, among other things, the so-called ‘rogue unit’. Gordhan also asked the court to interdict her office from enforcing the orders until the judicial review of her report on him was concluded.
In a statement issued on Wednesday afternoon, the Presidency said Ramaphosa had indicated his support for Gordhan’s suspension application “in as far as the relief sought by the Minister relates to the president”.
“The President says in his submission that it is clear from Minister Gordhan’s review application that there is a bona fide justifiable dispute between Minister Gordhan and the Public Protector over the legal validity of the Public Protector’s investigations and findings and the remedial action she has directed in her report.
“Moreover, Minister Gordhan also takes issue with the tacit assumption of the Public Protector that the President has legal powers ‘to take appropriate disciplinary action’ against the Minister when the Minister is not appointed to the Cabinet as an employee who is subject to disciplinary action but rather as a Minister who serves at the pleasure of the President,” the statement says.
Under the circumstances, Ramaphosa adds, “it would be premature for him to attempt to take ‘appropriate disciplinary action’ against Minister Gordhan while the principal review application is still pending and the disputes over the validity of the investigation into, and findings against, Minister Gordhan and the extent, if any, of the President’s ‘disciplinary’ powers over the Minister remain unresolved”.
Ramaphosa also argues that any “appropriate disciplinary action” he may take against Gordhan would need to be informed by whether the investigation into Mkhwebane’s findings are legally valid, and what disciplinary powers, if any, the president has over members of the Cabinet.
These issues should be determined by the North Gauteng High Court, according to Ramaphosa.
Mkhwebane’s report made several findings against Gordhan. These included that SARS, under Gordhan, established an intelligence unit in violation of the South African Intelligence prescripts; that the said unit failed to follow proper procurement processes in procuring equipment; that it failed to follow proper recruitment processes; that it carried out unlawful operations; and that Gordhan himself violated the Executive Ethics Code, misleading Parliament regarding a meeting where one of the Guptas was present.
The Public Protector ordered Ramaphosa to take “appropriate disciplinary action” within 30 days of the release of her report.