Ramaphosa's decision to delay acting against Gordhan 'a sensible one', court hears

01 August 2019 - 11:49 By Ernest Mabuza
Public protector Busisiwe Mkhwebane.
Public protector Busisiwe Mkhwebane.
Image: Thapelo Morebudi

President Cyril Ramaphosa's decision not to take action against public enterprises minister Pravin Gordhan, as ordered by public protector Busisiwe Mkhwebane, was a sensible one.

That was one of the arguments presented by Ramaphosa's counsel, Hamilton Maenetje SC, in an application by him against the public protector at the high court in Pretoria on Thursday.

Ramaphosa launched the urgent application to challenge the implementation of remedial action ordered by the public protector.

It relates to a report issued by Mkhwebane in May, which found that Gordhan was not authorised to approve the early retirement, with full benefits, of former revenue service (SARS) official Ivan Pillay in 2010.

Gordhan was finance minister at the time.

After early retirement was granted, SARS reappointed Pillay in the same position on a fixed-term contract.

The remedial action by the public protector required Ramaphosa to take appropriate disciplinary action against Gordhan for violating the constitution.

However, the president is awaiting finalisation of a judicial review brought by Gordhan against the public protector's report before he takes action against Gordhan.

The president wants the court to declare that he has complied with the remedial action.

Maenetje said the president could take various steps to comply with the remedial action, one of which was to await the challenge by Gordhan.

"There is absolute justification for the waiting. This court has already determined that the president's conduct of waiting is a sensible one," Maenetje said.

He was referring to a judgment passed by the Pretoria High Court on Monday, in which Judge Sulet Potterill said the president could not be criticised for awaiting a court's decision on suspension of remedial orders before acting.

"The president is acting in accordance with the law of the land before he implements any remedial action," Potterill said, suspending the implementation of remedial action by the public protector, pending a judicial review of another report.

Maenetje said the decision by the president to wait breached no provisions of the remedial action.

"In fact, it is in line with the jurisprudence of the court that executive functionaries must not frustrate pending litigation involving constitutional rights of others," he said.

The hearing continues.

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