Ramaphosa vs Mkhwebane: Public Protector suffers another court loss

The North Gauteng High Court has ruled in favour of President Cyril Ramaphosa on the matter involving remedial action ordered against Public Enterprises Minister, Pravin Gordhan, by Busisiwe Mkhwebane.

The premise of Ramaphosa vs Mkhwebane

The matter at hand relates to the report Mkhwebane released on the conduct of Gordhan back when he was at the helm of the South African Revenue Services (Sars).

In her findings, the Public Protector found that Gordhan played an instrumental role in the formation of Sars’ controversial investigative unit that, according to her, illegally ran intelligence operations outside the confines of the law.

She also criticised the minister for granting Pillay a full benefits package in his early retirement.

Both Pillay and Gordhan have since taken the Public Protector to task and approached the courts to have her report, and subsequent remedial action set aside.

Mkhwebane gave Ramaphosa 30 days to institute remedial actions against Gordhan. However, the president suspended this action, noting that he would rather wait until Gordhan’s review of the application is concluded in court before taking any action. Hence, we find ourselves where we are with this matter.

Why the court ruled in favour of Ramaphosa

The North Gauteng High Court ruled that the president acted in accordance with his duties and the prescripts of the law in deciding against taking remedial action against Gordhan.

“He has taken a sensible approach to say that he will defer. He is not saying he will not take remedial action against Gordhan. He is saying, he will defer the implementation of the disciplinary action, pending finalisation of Minister Gordhan’s review application,” the judge explained.

The judge ruled that Ramaphosa’s decision was “reasonable and rational.”

In its ruling, the court lambasted Mkhwebane for allowing emotions to cloud her judgment.

“It is mind-boggling why in this matter, the Public Protector did not even consent to the declaratory order, to have the remedial action stayed, pending the outcome of the review application,” the judge said.

The judge concurred with Ramaphosa sentiment around Mkhwebane’s apparent fixation with Gordhan’s relationship with the president.

While it is known that Ramaphosa views the minister as “a man of integrity”, the court refused to allow this to influence the outcome of the application regarding the suspension of the remedial action against Gordhan.

“The Public Protector contends there is a close relationship between Ramaphosa and Gordhan. She contends that Ramaphosa is protecting Gordhan. The president did not want to give the assertion any dignity, he correctly states that this has to do with legal issues, and has nothing to do with the friendship between the president and Gordhan,” the judge exclaimed.

What all of this means for Mkhwebane’s remedial action

With this ruling upheld, Mkhwebane has no choice but to allow the legal process in Gordhan’s review application to take shape.

Should it be found that her report into Gordhan’s conduct is valid then Ramaphosa will have no choice but to act on the remedial action.

However, if she loses that court battle as well, it will be yet another embarrassment for the office of the Public Protector.