Busisiwe Mkhwebane slams judge in Pravin Gordhan case, saying she 'overreached'

Public protector Busisiwe Mkhwebane says she will appeal the Pretoria High Court judgment suspending her remedial action against public enterprises minister Pravin Gordhan.

On Monday, the court interdicted Mkhwebane from enforcing the action recommended in her report on the SA Revenue Service’s (Sars) "rogue unit".

The court found that the public protector’s office would not suffer any harm if the interdict was granted, but that Gordhan would.

Gordhan lodged the urgent application to have the remedial action suspended pending the outcome of a review of Mkhwebane’s report. His application was supported by President Cyril Ramaphosa.

"The public protector is considering the legal recourse and remedies available to her, including forwarding this matter for the consideration of the Judicial Services Commission," said Mkhwebane's spokesperson, Oupa Segalwe.

Mkhwebane said she was disappointment with Judge Sulet Potterill's ruling.

"With respect, the public protector is of the view that Judge Potterill overreached. Instead of confining herself to matters relating to minister Gordhan’s application for the staying of the implementation of remedial action, the judge went beyond her scope and dealt with merits of the review application," said Segalwe.

He said in her judgment, Potterill "preempted" the outcome of the review application by addressing matters she had not been called upon to hear and "pronouncing" on issues that were not placed before her.

"Judge Potterill effectively tied the hands of and preempted the outcome of the review court. This raises the question whether there is still a need to continue with review proceedings.

"Further, it is curious that the judge deemed it fit to ventilate Mr Pillay’s qualifications or lack thereof and pronounce on the issue, and yet held that the disparaging remarks that minister Gordhan made against advocate Mkhwebane in his application for both the review and the interdict, which the public protector had requested the court to strike out, be deferred for the review proceedings," he said.

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Ivan Pillay is a former Sars official.

Mkhwebane, Segalwe said, had also not taken kindly to the fact that, in her ruling, Potterill relied on correspondence between her office and President Ramaphosa, even though the letters had nothing to do with the “rogue unit” matter before her, but related instead to the Pillay pension investigation.

"In addition, these documents were only handed in at court on the day of the hearing and other parties had not been favoured with an opportunity to engage on them," said Segalwe.

"Also of concern to the public protector is Judge Potterill’s use of language that is unbecoming of a judicial officer and which does not accord with the decorum of the court." In her ruling, the judge outrageously labelled the public protector’s remedial action “nonsensical”.