Public Protector Busisiwe Mkhwebane has lost her bid to overturn the North Gauteng High Court judgment granting Public Enterprises Minister Pravin Gordhan an interim interdict of the implementation of her “Sars rogue unit” report.
The Constitutional Court delivered its unanimous judgment on Friday, dismissing Mkhwebane and the EFF’s two separate applications for leave to appeal Judge Sulet Potterill’s decision to grant Gordhan an interim interdict of her remedial action ordering President Cyril Ramaphosa to take action against his minister pending a high court review.
Gordhan’s judicial review of Mkhwebane’s report is still pending before the high court.
However, the ConCourt granted Mkhwebane and the EFF leave to appeal Judge Potterill’s costs order. The ConCourt replaced Judge Potterill’s costs order against the EFF with one stating that Mkhwebane’s office must pay Gordhan, former Sars (SA Revenue Service) commissioners Ivan Pillay and Oupa Magashula’s legal costs.
According to the ConCourt, Judge Potterill’s personal costs order against Mkhwebane has been substituted with one stating her office will pay Gordhan, Pillay and Magashula’s costs, which the court explained was in accordance with fairness and equity.
All parties in the case will pay their own costs at the ConCourt. The judgment, written by Acting Deputy Chief Justice Sisi Khampepe with Justice Chris Jafta concurring, described the legal battle having garnered much public interest and criticism and that it also had political bite.
”However, it must at all times be remembered that courts must show fidelity to the text, values and aspirations of the Constitution. A court should not be moved to ignore the law and the Constitution and merely make a decision that would please the public,” Justice Khampepe stated. She said the public protector was a constitutional servant like courts and her office should be afforded respect.
”While she may be criticised, these comments should not be perceived as undermining her office and its constitutional powers. To mount a bad-faith attack on her office would surely work to undermine the constitutional project of the republic,” said Justice Khampepe.
Gordhan had questioned Mkhwebane’s remedial action, saying he found them bizarre and incoherent. He maintained the law allowed Sars to establish an investigative unit to investigate economic crime with tax implications. Mkhwebane also found that Gordhan dishonestly concealed the fact he met one of the Gupta brothers, but the minister maintained that he did not willfully mislead the National Assembly when he responded to questions.
EFF leader Julius Malema had accused Gordhan of setting up the unit to spy on citizens but he denied this, saying it was unfounded. Mkhwebane had also ordered Ramaphosa to take appropriate disciplinary action against Gordhan for approving Pillay’s early retirement when he (Gordhan) was finance minister.
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