Mkhwebane heads to ConCourt over Gordhan, says ruling ‘creates unbearable conditions’

Public Protector Busisiwe Mkhwebane has filed an application to the Constitutional Court for leave to appeal a High Court ruling which suspended the implementation of remedial action against Public Enterprises Minister Pravin Gordhan.

Last month, Gordhan won an urgent interdict to suspend the remedial action ordered in the South African Revenue Service (SARS) so-called ‘rogue unit’ report against him, while he seeks a full judicial review.

In the papers filed to the apex court, Mkhwebane argues that the High Court order was “granted erroneously and is bad in law” and that it will “create unbearable conditions for the effective functioning of the Public Protector”.

She wants the order to be set aside.

In a report released on July 5, Mkhwebane found that Gordhan had violated the Constitution and the Executives Ethics Code, in a report that related, among other things, to the establishment of the SA Revenue Service ‘rogue unit’ in 2007. Gordhan was the SARS commissioner at the time.

In her report she recommended that President Cyril Ramaphosa should discipline Gordhan within 30 days. She also directed the police and National Prosecuting Authority to consider criminal charges against him.

Mkhwebane has suffered numerous legal bruises for her reports. She contends that the importance of her application is “self-evident” and that it is in the interest of justice that an urgent direct appeal is granted in this application.

She further states that the ruling has the power to potential to “strip the Public Protector of the support and assistance necessary to promote constitutional governance”.

“Orders suspending my remedial actions against the respondents, have the effect that responsiveness, transparency and accountability in the exercise of state powers is suspended,” she argues.

Last month, the Constitutional Court upheld the personal costs order against Mkhwebane, in an appeal of matter based on her report on an apartheid era funding of Bankorp, now part of Absa, by the Reserve Bank.

The court agreed with the North Gauteng High Court that her Absa/Bankorp investigation was flawed, and that Mkhwebane was not honest during her investigation.

Mkhwebane further takes issue with the “perplexing” personal cost order in the Gordhan case.

“This is perplexing considering the fact that none of the parties in the application sought any such cost order,” reads the affidavit.


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