Media statement on behalf of our client, Min Pravin Gordhan on High Court Judgment – The Public Protector and Others
29 July 2019
On behalf our client, Min Pravin Gordhan, we welcome the judgment today by the High Court, Gauteng Division, Pretoria and its important affirmation of our client’s rights to procedural fairness.
In terms of the judgment, our client succeeded in establishing no fewer than seven prima facie rights in reliance of which the remedial actions by the Public Protector (PP) must be suspended, pending a judicial review.
The PP’s mandate is to protect the public from any conduct in government or public affairs that can result in malfeasance, impropriety, prejudice, unlawful enrichment or corruption. Our client maintains that he has great respect for the Office of the PP. However, he doubts the competence, integrity, legal literacy and constitutional grasp of its incumbent, of her powers, duties and functions.
The Constituional Court’s judgment of last week Monday, found that Adv Busisiwe Mkhwebhane’s flawed investigation, dishonesty and bad faith, fell far short of the high standards required of her office.
The High Court today ordered costs against the Public Protector and the EFF for opposing our client’s urgent application. Their arguments were found to be “baseless… with both the EFF and the PP and her office not seriously attacking the requirements necessary… and accordingly unsuccessful litigants should carry the costs”.
The judgment confirms that the PP failed to explain on what basis she exercised jurisdiction over complaints against our client going back as far as 2007, and what ‘special circumstances’ she relied on – a requirement of the PP Act – to entertain complaints about events that occurred more than two years ago.
In Paragraph 46 and 51 of the judgment, the court finds:
“… This court had to study the report and remedial orders in order to ascertain whether in fact there is irreparable harm to Gordhan. Much of the orders are vague, contradictory or nonsensical…
“…The harm to Gordhan speaks for itself. The harm would be irreparable if the interdict is not granted. Being prosecuted, disciplined and investigated most certainly constitutes harm and the harm may be irreparable and irreversible by the time the review application is heard, especially so if the review application is successful.... There is no harm to the PP or her office if the remedial action is suspended pending review…This matter constitutes a clear case where judicial interference is warranted…”
In respect of the arguments proffered by the EFF and the PP that they should not pay the costs, The Court further held that:
“… The EFF and PP has [sic] attempted to label the litigation as constitutional, but the character of the litigation before me is not of parties claiming their constitutional rights, but rights to prevent a harm flowing from a report that is challenged. It is conceded on behalf of the PP and her office that this is normal practice; to now assert that suspension threatens the office of the PP as a chapter 9 institution is far-fetched, ingenious [sic] nor substantive and does not raise truly constitutional considerations…”
This judgment confirms the need for the expeditious determination of the main review application.
Tomorrow when counsel for President Cyril Ramaphosa argues another similar urgent application against the PP’s remedial action directed to our client in relation to the PP’s first investigation report. Our client is a respondent in that application.
The judgment confirms that a review of the PP’s Report is no more than a constitutional entitlement that all South Africans enjoy including Min. Gordhan. It is precisely so because the Office of the PP is a constitutional institution under the rule of law. The Office of the PP ought to await the outcome of court review applications and must welcome the court’s scrutiny of its work.
Issued by Adrian Lackay on behalf of Pravin Gordhan, 29 July 2019
