Ramaphosa tells ConCourt: Don't let Mkhwebane withdraw her appeal in Gordhan matter

03 September 2019 - 19:05 By Qaanitah Hunter
President Cyril Ramaphosa
President Cyril Ramaphosa
Image: Gallo Images

President Cyril Ramaphosa has told the Constitutional Court that it must not allow Public Protector Busisiwe Mkhwebane to withdraw her appeal against a high court ruling at the apex court because it is in the national interest for the matter to be finally resolved.

In papers filed on Tuesday, Ramaphosa argued that Mkhwebane should not be allowed to make a U-turn and withdraw her Constitutional Court application for leave to appeal against a ruling preventing her office from enforcing remedial action against public enterprises minister Pravin Gordhan.

The president argued that his conflict with the public protector in court has given rise to "a heated and at times vituperative public debate that is potentially damaging to the executive, the public protector, and the courts".

He wants the Constitutional Court to finally decide on the matter.

Ramaphosa said that although he believes that the matter, which is now being fought by the EFF, has no basis for success, it should be ventilated by the court because it "raises important issues of a constitutional nature concerning institutions central to our constitutional democracy".

Last month, Mkhwebane notified the court that she and her office "withdraw their application for leave to appeal directly to this honourable court against the whole order and judgment granted by (Judge) Potteril".

In a judgment delivered in the Pretoria high court on July 29, Judge Sulet Potterill interdicted Mkhwebane and her office from enforcing the remedial action against Gordhan, which had been recommended in her report on the SA Revenue Service’s so-called "rogue unit”.

Gordhan had asked the high court to suspend and interdict the enforcement of the remedial orders by the public protector‚ pending the final determination of a review application by Gordhan to be determined at a later date.

Despite Mkhwebane’s withdrawal of her appeal at the Constitutional Court, the EFF had persisted with the matter, arguing that the high court was wrong in its decision.

"A judgment of this court will end any constitutional law controversy....... In this way, it will assist speedily to put an end to a vituperative public dispute that is harmful to our constitutional democracy," Ramaphosa said.

Besides that judgment against Mkwhbane, Ramaphosa had won two other similar cases against her.

"Litigation of this nature creates a risk that it will trigger public controversies that impair the dignity of the public protector, the executive organs of state involved in the dispute and even the high court itself," he noted.

Supporters of both the EFF and the public protector had lambasted Potteril’s judgment and claimed the high court did not have the power to interdict Mkhwebane’s recommendations pending the outcome of a review application of her report.

Ramaphosa added: "The public response to the hearing of these applications and the judgments handed down therein has been heated. Supporters of the different parties have fiercely criticised their perceived opponents. Some of this public criticism has been considered, but in many cases, reckless allegations have been exchanged in the public debate."

He said Mkhwebane, himself, Gordhan and even Judge Potteril have been subjected to unjustified attacks.

A fake twitter account, Ramaphosa argued, was even created in Potteril’s name.

He further argued that there was a pressing national need for the Constitutional Court to decide once and for all whether a high court can grant interim relief, staying the remedial action of the public protector.

Ramaphosa has argued that he believes the high court has the right to grant that order pending the outcome of the review. He believes the EFF was wrong in arguing that the remedial action should be implemented until the court finally sets aside a report of the public protector.