SACP welcomes court judgment suspending the remedial orders of the Public Protector pending the outcomes of a court review

29 July 2019

The South African Communist Party welcomes the judgment handed down in the North Gauteng High Court, City of Tshwane on Monday, 29 July 2019, in the matter between the Minister of Public Enterprises Pravin Gordhan and the Public Protector, first respondent, Adv Busisiwe Mkhwebane, second respondent and others. In particular the SACP seriously notes the damning court finding that the remedial “orders” prescribed by the incumbent Public Protector against the Minister “are vague, contradictory, and/or nonsensical”. The Party reiterates its call to Parliament to hold an inquiry into Mkhwebane’s fitness to hold office based on all the damning court findings against her.  

Gordhan approached the high court to have Mkhwebane’s “remedial orders” against him suspended pending a court review process. The high court concluded that there is no harm to the Public Protector in awaiting the outcome of the review process versus the harm that will befall the Minister if the interdict is not granted. The court further rejected a number of arguments advanced by the incumbent Public Protector and her supporters. Accordingly, Gordhan was granted the interdict and the Public Protector, first respondent, Mkhwebane, second respondent and the “Economic Freedom Fighters”, tenth respondent, were ordered, jointly and severally, to pay the legal costs of the Minister, applicant and two other affected persons.

The SACP particularly notes the profound conclusion reached by the court against the incumbent Public Protector’s argument that her remedial action must be implemented regardless of whether her report has been or is referred to court for review. The court concluded that:

“Suspension of a remedial order does not threaten the entrenched rights of the PP (Public Protector). The separation of powers harm on the balance of convenience favours Gordhan. Gordhan will, if the suspension [of the remedial orders prescribed by the Public Protector] is not granted and the review is subsequently upheld, be seriously prejudiced. It defies all logic to proceed with the execution of the remedial action when the report [of the Public Protector] as the basis for the remedial action, is the subject of judicial review. A mere suspension of a remedial order does not weaken the PP’s office. Every person under the Constitution has a right to review a report, this includes the Minister. The mere fact that the Minister does so, does not weaken the PP’s powers.”

Issued by Alex Mohubetswane Mashilo, National Spokesperson & Head of Communications, SACP, 20 July 2019