Public protector Busisiwe Mkhwebane has accused the high court that suspended her instruction that President Cyril Ramaphosa take disciplinary action against minister Pravin Gordhan of stifling the operations of her office.
Mkhwebane is seeking leave to appeal against the order of the high court in Pretoria.
Judge Sulet Potterill stayed the implementation of the remedial action Mkhwebane had ordered against Gordhan in her SA Revenue Service (Sars) “rogue unit” report, pending the minister’s court challenge to what he maintains is a legally and factually flawed investigation.
Mkhwebane’s lawyers say Gordhan, Ramaphosa, speaker of parliament Thandi Modise and national director of public prosecutions Shamila Batohi, among others embroiled in the case, “have not stopped hurling insults at the public protector and stirring unprecedented political antipathy towards her work after these orders were granted”. These statements included support for her removal from office, she said.
Mkhwebane withdrew this appeal application shortly after lodging it, but the Constitutional Court elected to hear the case after Ramaphosa urged it not to allow the embattled Mkhwebane to withdraw her case.
Even though Ramaphosa said he believed Mkhwebane’s appeal had no prospects of success, he contended that it should be ventilated by the court because it raised important issues of a constitutional nature “concerning institutions central to our constitutional democracy”.
Mkhwebane’s lawyers appear to agree, and now argue that it is in the interests of justice for the court to deal with the application she originally submitted.
In their papers to the court, the lawyers said Potterill’s orders had stripped the public protector of the only constitutional power she has to perform her constitutional functions. It had undermined her independence, impartiality, dignity and effectiveness.
The lawyers said the judge’s orders amounted to interference with the functioning of the public protector and had exposed her to “unprecedented institutional and personal attacks” by members of the executive and legislature. This, the lawyers said, threatened to “eviscerate the constitutionally protected independence, impartiality, dignity and effectiveness” of the public protector.
After serving three years of her seven-year term, Mkhwebane is facing a parliamentary inquiry into her fitness to hold office. A series of scathing rulings has raised serious questions about her honesty, impartiality, competence and grasp of the constitutional requirements of her position.
One of those adverse rulings was recently granted against Mkhwebane — in relation to her disastrous Reserve Bank report — by the Constitutional Court, where she is now seeking to appeal against the Potterill ruling.
In his main challenge to the public protector’s Sars report, which is yet to be heard, Gordhan wants the high court to order that Mkhwebane has acted in breach of her constitutional duties to be independent and fair, and that she dishonestly or recklessly made findings against him that she knew were false or reckless.
He argues that the court should hit Mkhwebane with yet another punitive personal costs order, which will follow multiple rulings in the high and constitutional courts that force her to pay, personally, for successful legal challenges to her reports.
According to Gordhan, Mkhwebane is unfit to hold office and “continues to ignore her constitutional mandate, act without regard to the provisions of the law and seemingly in service to some other motive or agenda”.
She has vehemently denied this.
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