Constitutional Court judgement – Economic Freedom Fighters & the Public Protector
29 May 2020
On behalf our client, Minister Pravin Gordhan, we welcome the unanimous judgment today by the Constitutional Court, which dismissed the direct appeals by the EFF and the Public Protector. In its judgment, the Constitutional Court clarified the question whether interim interdicts against the Public Protector constitute an improper interference with her powers.
The Court held that the test for interim interdicts against the Public Protector’s remedial action pending judicial review do not require a special test to be applied by the Courts as contended for by the EFF. The Court has also held that it does not agree with the contentions by the Public Protector that the granting of an interim interdict will impermissibly interfere with her constitutional duties. The Court held that:
“58 Once a report is published and made available for public consumption, it is difficult to understand how an interim interdict against the enforcement of the remedial action hinders the effectiveness of the Public Protector. How would an interim interdict hinder the Public Protector in the exercise of her powers, or prevent her from exercising her functions once the report is released and in the public domain?... The Public Protector is not rendered ineffective since the investigation has been completed, the SARS Report has been finalised and published and the interim interdict is sought merely to protect the prima facie rights of an applicant.”
The Constitutional Court judgment reaffirms the rights of persons to obtain interim relief, even against the Public Protector, in circumstances where the test as set out in prior Constitutional Court judgments has been met. This was the case with Minister Gordhan who obtained an interim interdict in order to protect his right not to be subjected to, amongst others, undefined disciplinary action by the President of the Republic of South Africa pending a judicial review of the findings and remedial actions of the Public Protector.
Issued by Tebogo Malatji on behalf of Pravin Gordhan, 29 May 2020
