What’s wrong with Mkhwebane’s report? 6 arguments Gordhan made
Here are the six main arguments made by Minister Pravin Gordhan’s legal team in his urgent application to interdict Busisiwe Mkhwebane's report into the so-called rogue unit.
JOHANNESBURG – Public Enterprises Minister Pravin Gordhan’s legal team has argued before the High Court in Pretoria that the “erroneous findings” and remedial orders made by Public Protector Busisiwe Mkhwebane in her Sars “rogue unit” report would have an “adverse personal and political impact” on him.
Gordhan, represented by Advocate Wim Trengove, approached the High Court on Tuesday on an urgent basis seeking to suspend and interdict the enforcement of Mkhwebane’s remedial orders pending the final determination of a review application to set the report and its findings aside.
The Public Protector found in her report into the establishment of the intelligence unit during Gordhan’s tenure as the then Sars commissioner was in violation of the country’s legislation on intelligence gathering and Constitution. The report was released earlier in July.
The unit was called the High-Risk Investigations Unit and had several other names. It was set up to investigate high-profile tax offenders, but it’s alleged to have carried out rogue operations, such as bugging the offices of the National Prosecuting Authority (NPA).
Gordhan has always maintained that the unit was above board and had ministerial approval.
In her recommendations and remedial action, Mkhwebane ordered President Cyril Ramaphosa to discipline Gordhan for his role in the establishment of the intelligence unit within 30 days of the release of her report. Among others, she wanted the minister to face an ethics probe in Parliament, and the NPA to finalise its prosecution of individuals who were involved with the unit.
Here are the six main arguments made by the minister’s legal team.
1. Irreparable harm:
Gordhan’s lawyers argued that the “erroneous findings” and remedial orders made by Mkhwebane have had “an adverse personal and political impact” on him. They argued that the Public Protector’s findings in her report have been used to cast aspersions on the character of the minister and to “malign his reputation and adversely affect” his standing as a member of Ramaphosa’s Cabinet.
“The EFF [Economic Freedom Fighters] exploits the report in a political campaign against minister Gordhan that has culminated in unlawful intimidation and assault of him, and an unprecedented attempt to physically prevent him from addressing Parliament, on 11 July 2019.
“A week later, on 17 July 2019, [EFF leader Julius] Malema used the report to launch another vitriolic, conspiratorial and baseless attack on minister Gordhan in Parliament. All of this is part of a campaign of personal and political attacks on minister Gordhan by the EFF,” Gordhan’s lawyers argued in court papers.
His legal team also argued that the temporary suspension of the implementation of the Public Protector’s remedial orders may not stop the said political campaign by the minister’s detractors like the EFF, “but would ensure that the rule of law is maintained in a heated political climate”.
They argued that should the High Court decline Gordhan’s application for an urgent interdict, the harm to his physical, personal and political rights would be compounded by being subjected to a disciplinary process - as ordered by the Public Protector - based on an “unlawful” report.
They posited that Gordhan would further suffer irreparable harm since this action would be unlawful itself and likely irreversible.
“Finally, the grant of the urgent relief would ensure that the review remains legally viable and not moot. It would ensure no further harm comes to minister Gordhan’s rights under the rule of law and the Constitution to challenge the report”.
2. PP’s bias and ulterior purpose:
The minister’s lawyers argued that their contention of implied bias and ulterior purpose on Mkhwebane’s part were not advanced merely for purposes of special orders for costs. Gordhan wants the Public Protector to be ordered to pay his legal costs personally should his later review application – to be determined at a later date – be successful.
On Monday, the Constitutional Court in the Absa/Bankorp lifeboat matter said personal costs orders were an essential, constitutionally-infused mechanism to ensure that the conduct of public representatives does not fall egregiously short of what is required of them. The ConCourt, in a majority judgment, ruled that Mkhwebane acted in bad faith and should personally pay for 15% of the South African Reserve Bank’s legal fees, which were estimated could run into hundreds of thousands of rands.
3. Violation of Gordhan's rights:
Based on the aforementioned bias and ulterior purpose, Gordhan’s team argued that the Public Protector breached the minister’s rights according to Section 1(c) of the Constitution (Bill of Rights) and the Public Protector Act.
“Section 3(13)(a) of the Public Protector Act which requires all members of the Office of the Public Protector to ‘serve impartially and independently and perform his or her functions in good faith and without fear, favour, bias or prejudice’.”
Gordhan’s lawyers argued that the EFF’s claim that the minister made “gratuitous insults” against the Public Protector was not the case.
“Minister Gordhan makes a legitimate attack on the Public Protector’s report on the grounds of bias and ulterior purpose. This debate, however, is not relevant in the determination of Part A (urgent interdict). This court is not called upon to make any findings on the issue at this stage. It will stand over for determination under Part B (review application).”
4. No prejudice suffered by PP:
Gordhan's lawyers maintained that on the balance of convenience, the High Court – based on the application for an urgent interdict - there would be no prejudice to the Public Protector should the relief be granted.
“Minister Gordhan, on the other hand, stands to be seriously prejudiced should this application be dismissed. If he is subjected to disciplinary proceedings and criminal investigations, but later vindicated by the review court, that relief will be nugatory as the remedial action would already have been implemented against him.
“The suspension order allows the review court to pronounce on the merits of the review, vindicating Minister Gordhan’s right to access justice and upholding the rule of law.”
The lawyers also argued that the granting of the interdict would prevent a parallel process, in which Gordhan has instituted the review application of Public Protector’s report, while being simultaneously subjected to a disciplinary process and criminal investigation.
“A parallel process would be an unnecessary waste of public resources, particularly judicial resources and public funds. All of which are already scarce and are better utilised in more deserving circumstances than this.”
5. Challenge of PP’s remedial action:
Gordhan’s lawyers have also made an argument for the rule of law and the separation of powers. They argued that the Public Protector sought to interfere with the exercise of statutory powers by directing the president, Parliament, the minister of State Security, the NPA and the commissioner of police how to exercise their powers and perform their functions.
The Public Protector ordered the police commissioner to “investigate the criminal conduct of Mr Gordhan, [former Sars deputy commissioner Ivan] Pillay and officials involved in the Sars intelligence unit, for violation of section 209 of the constitution and section 3 of the national strategic intelligence act including [former Sars commissioner] Mr [Oupa] Magashula’s conduct of lying under oath”.
Mkhwebane ordered State Security Minister Ayanda Dlodlo within 30 days to ensure that all intelligence equipment utilised by the unit was returned, audited and placed into the custodian of the State Security Agency, among her remedial action.
Gordhan’s lawyers argued: “The effect of an interim order would merely be to suspend her interference until this court has had an opportunity to determine whether it is lawful. The balance of convenience, including the weighty considerations of the rule of law and separations of powers, thus favour the interim order.”
6. No other satisfactory remedy:
Finally, Gordhan’s legal team argued that there was no other suitable alternative remedy available to him given the binding nature of the Public Protector’s remedial action.
“The Public Protector herself acknowledges, at least in other cases, that an interdict preventing enforcement of the remedial action pending the outcome of a review is required. There is nothing exceptional about this case that explains her change in attitude. Accordingly, the requirements for interim relief are amply satisfied.”