High-stakes Sars case will define Public Protector’s powers

Arguments over whether the public protector’s remedial action can be ‘frozen’ until a court has decided on its legality revealed the stench of politics behind the legal matter.

On some days, the Constitutional Court really hums. Especially when the case being heard has caught the public imagination, the judges probe relentlessly and some of the country’s finest lawyers respond with erudition, humour and, even when they appear to be flailing in the face of a barrage of questions, some nifty, on-the-spot, legal improvisation.

The arguments in the matter heard on Thursday 28 November between the EFF and Public Protector Busisiwe Mkhwebane on one side, and former finance minister Pravin Gordhan (currently the minister of public enterprises), President Cyril Ramaphosa and former South African Revenue Service (Sars) commissioner Ivan Pillay on the other, was such a contest.

The EFF were asking the Constitutional Court to rule on what happens when a lower court grants an interim interdict against the implementation of remedial action proposed by the public protector while litigation regarding whether or not those findings and recommendations are lawful and rational has yet to be finalised.

Should the remedial action be implemented until the courts have decided, or is it okay to delay implementing the public protector’s remedial action until the courts have confirmed its veracity, or otherwise? 

What effect would these approaches have on the functioning of the public protector’s office? Or people’s faith in that office to perform its job efficiently? Or on the lives of ordinary South Africans who seek succour there, because they have no other options?

Higher test

The Constitutional Court’s 2016 Nkandla judgment confirmed that such remedial action is legally binding on the state, corporate South Africa or ordinary citizens unless set aside by the courts. One can’t run a parallel fact-finding process – as former president Jacob Zuma did through Parliament, which absolved him of having to pay some of the millions the state had spent on his private residence in Nkandla as instructed by the public protector’s office – and use that as a basis to decide the veracity of the recommendations and whether to comply with them or not. 

The report on which this matter was founded related to the so-called Sars rogue unit, which was allegedly created unlawfully and then proceeded to spy on people illegally. 

Mkhwebane found there was substance to these allegations and, among others, instructed Ramaphosa to take disciplinary action against Gordhan, who was finance minister at the time.

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Gordhan and other former Sars officials launched an application to have the report reviewed by the courts.

On Thursday, the EFF were also asking the Constitutional Court to set out a higher test for the granting of an interim interdict in matters involving the public protector’s remedial action.

If this was not done, advocate Tembeka Ngcukaitobi for the EFF argued, then interim interdicts that freeze the implementation of the public protector’s remedial action “risk turning [the office] into a paper tiger that can be outflanked by astute litigants”. The use of these interim interdicts, he argued, would in essence become a “draconian measure” that would inhibit the delivery of justice.

Erron the side of citizens

Ngcukaitobi said parties “must simply accept a recommendation” until the courts decide otherwise, especially because incessant attempts by litigants to freeze the recommendations would have a detrimental effect on the country’s poor – the “Gogo Dlaminis” of South Africa, whose complaints former public protector Thuli Madonsela was famously quoted as saying constituted the majority of the office’s work.

He said most ordinary complainants, like Gogo Dlamini, do not have the financial resources to approach the courts with their complaints and Parliament is not accessible enough to them. If Gogo Dlamini’s complaint to the public protector about her pension was successful and she won a payout, she would be in danger of “waiting years to get paid” if an interim interdict was granted, so the test had to be “elevated”.

Ngcukaitobi argued that the Constitutional Court, in its 2015 City of Tshwane vs AfriForum judgment, dealing with the renaming of streets in Pretoria, had made clear that the “mere fact you have instituted legal proceedings doesn’t mean you have to suspend everything”.

Justice Chris Jafta asked Ngcukaitobi what then, if the courts found that Gogo Dlamini had to “pay back the money”?

Ngcukaitobi said it was “much more preferable” to “err” on the side of ordinary citizens like Gogo Dlamini than those in power. 

Promoter of state capture

Jafta had earlier quizzed Ngcukaitobi on how an interim interdict would undermine the public protector’s ability to perform its functions as the investigations and report, at that stage, had been completed and remedial action recommended. Mkhwebane’s job was done.

He also caused Ngcukaitobi to concede that part of the problem was the “delay in the judicial system”, which meant lengthy waits before matters such as Gordhan’s review of Mkhwebane’s report were heard. 

Jafta and acting deputy chief justice Sisi Khampepe – who led the bench in the absence of Chief Justice Mogoeng Mogoeng, who is on long leave – had great difficulty in understanding Mkhwebane’s position.

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Her counsel, advocate Thabani Masuku, had conceded that Mkhwebane had “no quibble” with people applying for interim interdicts against her recommendations and that she rarely opposed them, but in this instance she had been spurred on by allegations that Gordhan had made in his initial founding affidavit.

According to Masuku, this was an “extraordinary situation” because Gordhan had accused Mkhwebane of being a “promoter of state capture” and that “in making those findings [in the report], she was promoting corruption and the political interests” of those hellbent on pillaging the state.

Tough crowd

Judge Leona Theron was unimpressed, noting that the “fact that she was aggrieved” by Gordhan’s comments didn’t necessarily give the Constitutional Court jurisdiction.

Jafta said he was struggling to understand the “parameters” of Mkwebane’s case and if she, too, was asking for a more stringent test in awarding interim interdicts.

He noted that the papers didn’t argue for a more stringent test in the granting of court interdicts, while her complaints in the affidavit – of “offensive language” by Gordhan and a misapplication of the law in granting interdicts – were hardly matters of constitutional heft.     

Masuku kept returning to the president’s “constitutional obligation” – and that of Gordhan – to “assist and protect” the office of the public protector. They were in dereliction of this obligation when Ramaphosa did not tale action against Gordhan, who went on to make “extraordinary allegations” against Mkwebane.

This line didn’t impress Khampepe, whose deadpan seriousness during hearings appears to have leavened the atmosphere in the court, with junior members and acting appointments seemingly liberated in their quizzing of lawyers. 

“I still need to understand what the public protector’s case is,” she told Masuku. His scratching for an answer only led to more irritation: “Yes, yes, you still haven’t given us a clear answer … We need to know what your case is,” she maintained. The gallery sniggered.

Heartlandtrespasser

After lunch, Wim Trengove for Gordhan argued that the “beginning and the end of the case” was if the high court had correctly applied the principles set out in the Constitutional Court’s 2012 judgement in National Treasury and Others vs Opposition to Urban Tolling Alliance and Others, which had been mindful of the separation of powers doctrine in deciding matters involving other arms of the state, or its functionaries.

Trengove argued that Mkhwebane’s recommendations, especially that which called for disciplinary action to be taken by the president against Gordhan, trespassed into the “heartland of the president’s executive power” to appoint and fire ministers. 

Likewise, Mkhwebane’s recommendation that the speaker in the National Assembly refer Gordhan’s conduct to Parliament’s ethics committee suggested that “they must simply accept his guilt” and act on it, which was again a “serious invasion” of the institution’s powers.

He dismissed Mkhwebane’s other recommendations as “bizarre” and based on “gross superficiality or bad faith”. These included Mkhwebane’s recommendation that the National Police Commission investigate Gordhan for criminal activity in relation to various legislation and the Constitution. But, Trengove argued, the sections of the law that Mkhwebane pointed to in making these recommendations had nothing to do with criminal activity. 

One-sided repercussions

Advocate Matthew Chaskalson for Ramaphosa reiterated the president’s stance that should Mkhwebane’s recommended remedial action “survive review”, he “will implement it”.

Chaskalson maintained that Mkhwebane’s recommendations meant the “composition of the Cabinet would have been interfered with against the Constitution”.

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“This case is not about Gogo Dlamini’s pension,” he argued. “When she comes before this court, it will be dealt with … In this case, there is a massive harm to the executive if the remedial action is implemented and no harm to the public protector if the recommendations are found to be illegal.”

Chaskalson also maintained that this case was “entirely different” from when Zuma refused to accept the findings of the public protector against him in relation to the Nkandla matter, because the then president had run a parallel investigation to absolve him of any wrongdoing that was later found to be unconstitutional.  

Spectre of Zuma

Beyond the perfume of the law, of our courts working, is the stench of politics.

That was evident in the Constitutional Court on Thursday. In arguments alleging that Mkhwebane sometimes plays fast and loose with the law, which she appears not to know very thoroughly, the spectre of Zuma’s attempts to destroy institutions during his presidency through apparently “useful idiots” was again raised.  

Why the EFF are pressing the Constitutional Court to decide a matter that is in need of clarity, certainly, but in this case specifically would demand the axing of a minister who has been a troubling thorn in their side is a question that hangs over their litigation.

Behind the perfume of Ngcukaitobi’s arguments and his obvious constitutional curiosity, the stench of the alleged looting of the VBS Bank by EFF leaders, and Sars’ investigations into these matters, still lingers.

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