Public Enterprises Minister Pravin Gordhan is back in the North Gauteng High Court, Pretoria, in his legal tussle against Public Protector Busi Mkhwebane over the SA Revenue Service’s (Sars) so-called “rogue unit”.
A full bench of the high court – judges Selby Baqwa, Leonie Windell and Annali Basson – will hear arguments in Gordhan’s bid to review and set aside Mkhwebane’s report’s legality, findings and the binding remedial action, on Thursday and Friday.
Gordhan successfully interdicted the implementation of the report, which recommended that President Cyril Ramaphosa take disciplinary action against the minister.
However, Ramaphosa told Mkhwebane that remedial action was vague and impossible to implement as there was no employment relationship between him and Gordhan.
The president also delayed the implementation of the remedial action and disciplinary action against Gordhan until the determination of the judicial review application.
Gordhan successfully interdicted the implementation of Mkhwebane’s remedial action, arguing it was irregular and ultra vires (beyond her powers) pending the review he launched in July last year.
In granting the interdict, Judge Sulet Potterill found that Mkhwebane’s report maligned Gordhan as being untruthful and a spy and would have an impact on his political career and personal circumstances.
Gordhan accused Mkhwebane of being incompetent, irrational and negligent in the performance of her duties.
The EFF, which intervened in opposing Gordhan’s application to interdict the implementation of remedial action, took the matter on appeal at the Constitutional Court with Mkhwebane.
However, the apex court dismissed both applications for leave to appeal and found that the fear of the report’s impact on Gordhan’s political career and personal circumstances were not misplaced, and the full effect of these potential consequences should be held in abeyance until the review application is completed.
The Constitutional Court found that Judge Potterill materially misdirected herself when she ordered Mkhwebane to pay the costs in her personal capacity but failed to furnish any reasons to justify it.
In May last year, Mkhwebane also found that Gordhan acted illegally and irregularly when he approved the early retirement of former Sars acting commissioner Ivan Pillay.
The country’s highest court ordered the Public Protector’s office to pay Gordhan, Pillay and former Sars commissioner Oupa Magashula’s costs.
Gordhan approved Pillay’s early retirement with full pension benefits and subsequent retention at Sars on Magashula’s recommendation.
Mkhwebane had ordered the police to investigate the criminal conduct of Gordhan, Pillay and officials involved in the Sars intelligence unit including Magashula’s conduct of lying under oath.
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