Mkhwebane legal saga: Judge Potterill contradictory – Lawyer

Report creates impression judge was removed because of her alleged 'disparaging' remarks about PP

Mkhwebane legal saga: Judge Potterill report contradicts what happened in closed meeting - lawyer

8 October 2019

Lawyers representing former SA Revenue Service (SARS) deputy commissioner Ivan Pillay intend writing to North Gauteng Deputy Judge President Aubrey Ledwaba to draw his attention to a report that a judge was taken off a case involving the Public Protector because she had allegedly made disparaging remarks about the Public Protector in a judgment.

While the meeting with Ledwaba where the case was discussed was confidential, lawyers say the report contradicts what was discussed in the meeting.

Sources close to the process say the report creates the impression that Judge Sulet Potterill was removed because of her alleged "disparaging" remarks about Busisiwe Mkhwebane, when the decision was really about a scheduling conflict.

The case concerns an application by State Security Minister Ayanda Dlodlo attempting to prevent the release or publication of a report by the Inspector General of Intelligence (IGI) into the so-called SARS "rogue unit". Dlodlo wants the court to prevent the release of the report because it is classified.

The report was attached to court papers in a separate, but related, application in the Equality Court between the EFF and Public Enterprises Minister Pravin Gordhan.

The EFF released the report publicly last week, despite the fact that it has not been declassified, and Mkhwebane referenced it in her report into Gordhan.

She found that President Cyril Ramaphosa should discipline Gordhan because he authorised the "rogue unit" – an investigative unit within SARS which Mkhwebane found was "illegal".

Gordhan went to court to have the implementation of Mkhwebane's remedial action suspended, pending a full review of the report. In granting Gordhan's application, Potterill found that Mkhwebane's orders against Gordhan were "vague, contradictory and/or nonsensical".

Mkhwebane took that interdict on review and later withdrew her application. But the EFF has also applied for review and the Constitutional Court is expected to hear the matter.

Mkhwebane reportedly laid a complaint against Potterill with the Judicial Services Commission (JSC). On Friday, lawyers for the parties met in Ledwaba's chambers to discuss scheduling issues around the IGI report matter, which will now be heard on November 6.

City Press on Sunday quoted Mkhwebane's spokesperson, Oupa Segalwe, as having said that Potterill was removed from the Dlodlo matter by Ledwaba on Friday because of the JSC complaint against her.

"She has already made disparaging findings against the Public Protector and expressed her negative views on the matter," Segalwe reportedly said.

But lawyers for Pillay, who joined Gordhan's review application in support of the minister's case, say Segalwe's remarks contradict what really happened in the meeting on Friday.

Bernard Hotz, the attorney representing Pillay, said he could not comment on what took place at the "confidential" meeting. Pillay was also implicated in the Gordhan report and has supported Gordhan's application to have it reviewed in court.

But Hotz said he would be writing to the deputy judge president to say that, if what was attributed to Segalwe by City Press was accurate, he would like to "draw his (Ledwaba's) attention to it", as it "contradicts what was said".

He said it would not be appropriate to comment further.