Ngcukaitobi argues requirements for an interim interdict should not apply to PP

The EFF and Public Protector Busisiwe Mkhwebane approached the court after the High Court in Pretoria ruled against them in July with regards to the power of the courts to suspend the implementation of the Public Protector’s remedial action.

FILE: Advocate Tembeka Ngcukaitobi at the North Gauteng High Court on 12 December 2018. Picture: Abigail Javier/Eyewitness News.

PRETORIA - The Constitutional Court is hearing argument over when it’s acceptable to suspend the implementation of a Public Protector’s remedial action.

The Economic Freedom Fighters (EFF) is before the nation’s highest court to try and have the remedial action on the so-called Sars rogue unit enforced.

The Public Protector instructed the president to take action against Public Enterprises Minister Pravin Gordhan over the unit.

The president took the matter to the High Court and won an interdict to stave off the action. Now the EFF is trying to force him to act.

Advocate Thembeka Ngcukaitobi has argued that because of the Public Protector’s important role, as established in the Constitution, the normal requirements for an interim interdict should not apply.

He said a stricter test should apply. But the full bench of the apex court was not convinced and asked the advocate how the Public Protector or the public would be prejudiced by a suspension of the remedial action.

The bench further put it to the advocate that common law principles would apply to appeal and review proceedings, which have the effect that the applicable order is suspended pending a review.

Advocate Busisiwe Mkhwebane has joined the appeal, which is being opposed by minister Gordhan and President Cyril Ramaphosa.