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[2019] ZAGPPHC 311
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Gordhan v Public Protector and Others (48521/19) [2019] ZAGPPHC 311; [2019] 3 All SA 743 (GP) (29 July 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
Case Number: 48521/19
29/7/2019
In
the matter between:
PRAVIN
JAMNADAS GORDHAN
Applicant
and
THE
PUBLIC PROTECTOR
First
Respondent
BUSISIWE
MKHWEBANE
Second
Respondent
THE
PRESIDENT OF THE REPUBLIC OF SOUTH
AFRICA
Third
Respondent
THE
SPEAKER OF THE NATIONAL ASSEMBLY
Fourth
Respondent
THE
MINISTER OF STATE
SECURITY
Fifth
Respondent
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
Sixth
Respondent
THE
NATIONAL COMMISSIONER OF
POLICE
Seventh
Respondent
VISVANATHAN
PILLAY
Eight
Respondent
GEORGE
NGAKANE VIRGIL MAGASHULA
Ninth
Respondent
ECONOMIC
FREEDOM FIGHTERS
Tenth
Respondent
JUDGMENT
POTTERILL
J
[1]
The applicant, Pravin Jamnadas Gordhan ["Gordhan"] is on an
urgent basis
seeking that the remedial orders in paragraph 8 of the
Public Protector's report No 3 6 of 2019 /20 ["the Report"]
of
5 July 2019 be suspended pending the final determination of Part B
of this application. The first respondent, the Public Protector
["the
PP"], and the second respondent, Busisiwe Mkhwebane
["Mkhwebane"] are to be interdicted from enforcing
the
remedial order pending the determination of Part B of this
application. [For ease of reference I refer to the PP and Mkhwebane
as the PP]. In Part B Gordhan is seeking the review and setting aside
of the PP's report from which the remedial action flows.
[2]
The
third respondent, the President of the Republic of South Africa ["the
President"], the eight respondent, Visvanathan
Pillay ["Pillay"]
and the ninth respondent, George Ngakane Virgil Magashula
["Magashula"] abided and supported
the application of
Gordhan. The sixth respondent, the National Director of Public
Prosecutions ["the NDPP"] and the seventh
respondent, the
National Commissioner of Police ["the Commissioner"] abided
the court's decision. The Economic Freedom
Fighters ["EFF"]
brought an application to intervene in the application, it was
unopposed and I accordingly ordered that
the EFF is to intervene as
the 10
th
respondent.
[3]
The
fifth respondent, the Minister of State Security, informed this court
that they were to serve and file an application to strike
a report
attached to the EFF's opposing affidavit from the record. The EFF had
not seen the application and had instructions to
oppose same. By
agreement between the EFF and the Minister of State Security the EFF
would not, in opposition to this application,
refer to that report
and the Minister of State Security would approach the Deputy
Judge-President for an urgent date to hear this
interlocutory
application before Part B is to be heard. Counsel for the Minister of
State Security was excused from the proceedings.
Urgency
[4]
On the papers the EFF and the PP opposed the urgency of the matter.
Urgency was however
correctly conceded in argument; the matter being
inherently urgent.
Issue to be decided
Can this court grant an interim
interdict to suspend the operation of the PP' s remedial orders
pending the final determination
of the review?
Remedial orders of the PP
[5]
The order of the PP is set out in
paragraph 8 of the report and reads as follows:
''8.
REMEDIAL ACTION
The appropriate remedial action
taken as contemplated in section 182(1)(c) of the Constitution, with
a view of remedying the impropriety
referred to in this report is the
following:-
8.1
The
President of the Republic of South Africa
8.1.1 To take
note of the findings in this report in so far as they related to the
erstwhile Minister of Finance,
Mr Gordhan and to take appropriate
disciplinary action against him for his violation of the Constitution
and the Executive Ethics
Code within 30 days of issuing of this
report.
8.2
The
Speaker of the National Assembly:
8.2.1 Within
14 working days of receipt of this Report, refer Mr Gordhan 's
violation of the Code of Ethical Conduct
and Disclosure of Members'
Interests for Assembly and Permanent Council Members to the Joint
Committee on Ethics and Members' interests
for consideration in terms
of the provisions of paragraph 10 of the Parliament Code of Ethics.
8.3
The
Minister of State Security to:
8.3.1
Within
60 days of the issuing of this Report, acting in line with
Intelligence Services Amendment Act, implement, in totality the
OIGI
report dated 31 October 2014.
8.3.2
Within
30 days ensure that all intelligence equipment utilised by the SARS
intelligence unit is returned, audited and placed into
the custodian
of the State Security Agency.
8.3.3
Within
14 days of the issuing of this report avail a declassified copy of
the OIGI report dated 31 October 2014
8.4
The
National Director of Public Prosecutions to note:
8.4.1
That
I am aware that there are currently criminal proceedings underway
against implicated former SARS officials and that therefore
effective
steps should be taken to finalise the court process as the matter has
been remanded several times.
8.5
The
Commissioner of the South African Police Service to:
8.5.1
Within 60 days, investigate the
criminal conduct of Messrs Gordhan, Pillay and officials involved in
the SARS intelligence unit,
for violation of section 209 of the
Constitution and section J of the National Intelligence Act including
Mr Magashule's conduct
of lying under oath."
[6]
Paragraph 9 of the report is also relevant and reads as follows:
"9.
MONITORING
9.1
The
President of the Republic of South Africa must, within thirty (30)
days from the date of the issuing of this Report and for
approval of
the Public Protector, submit an Implementation Plan to the Public
Protector indicating how the remedial action referred
to in paragraph
7.1 of this Report will be implemented.
9.2
The
Speaker of the National Assembly must, within thirty (30) days from
the date of the issuing of this Report and for approval
of the Public
Protector, submit an Implementation Plan to the Public Protector
indicating how the remedial action referred to in
paragraph 7. 2 of
this Report will be implemented.
9.3
The
Minister of State Security must, within thirty (30) days from the
date of the issuing of this Report and for approval by the
Public
Protector, submit an Implementation Plan to the Public Protector
indicating how the remedial action referred to in paragraph
7.3 of
this Report will be implemented.
9.4
The
Inspector-General of Intelligence must, within thirty (30) days from
the date of the issuing of this Report and for approval
of the Public
Protector, submit an Implementation Plan to the Public Protector
indicating how the remedial action referred to in
paragraph 7. 4 of
this Report will be implemented.
9.5
The
National Commissioner of the South African Police Service must,
within sixty (60) days from the issuing of this Report, investigate
the criminal conduct of Messrs Gordhan, Pi/lay and officials involved
in the SARS intelligence unit, including Mr Magashula's conduct
of
lying under oath.
9.5
The National Commissioner of the South African Police Service must,
within sixty
(60) days from the issuing of this Report, investigate
the criminal conduct of Messrs Gordhan, Pi/lay and officials involved
in
the SARS intelligence unit, including Mr Mgashula's conduct of
lying under oath.
9.6
In line with the Constitutional Court decision in Economic Freedom
Fighters
v Speaker of the National Assembly and Others; Democratic
Alliance v Speaker of the National Assembly and Others [
2016] ZACC
11
, and in order to ensure the effectiveness of the office of the
Public Protector, the remedial action prescribed in this Report is
legally binding on the President of the Republic of South Africa,
unless a court order directs otherwise.
"
Will the granting of an interim
interdict fail to promote the objects, spirit and purport of the
Constitution?
[7]
An
interlocutory interdict is granted
pendent
lite
and designed to protect the
rights of the complaining party pending an application to establish
the respective rights of the parties.
It is aimed at ensuring, as far
as reasonably possible, that the party that is ultimately successful
will receive adequate and
effective relief. Already in
Pikoli
v President
2010 (1) SA (GNP)
at p404B-C Du Plessis J found that:
“
...
the court
considering whether to grant or refuse an interim interdict must also
bear in mind that the courts have a constitutional
obligation to
uphold the Constitution and to 'declare that any
...
conduct that is
inconsistent with the Constitution is invalid to the extent of its
inconsistency.”
[1]
[8]
This test is formulated thus in
National Treasury v Opposition
to Urban Tolling Alliance
2012 (6) SA 223
(CC)
at
paragraph [45]: [The
OUTA-decision]
''It seems to me that it is
unnecessary to fashion a new test for the grant of an interim
interdict. The Setlogelo test, as adapted
by case law, continues to
be a handy and ready guide to the bench and practitioners alike in
the grant of interdicts in busy magistrates'
courts and high courts.
However, now the test must be applied cognisant of the normative
scheme and democratic principles that
underpin our Constitution. This
means that when a court considers whether to grant an interim
interdict it must do so in a way
that promotes the objects, spirit
and purport of the Constitution.
"
The
Setlogelo
test, requires an applicant to establish:
(a)
a
prima
facie
right though open to some
doubt;
(b)
a reasonable apprehension of
irreparable and imminent harm to the right;
(c)
the balance of convenience; and
(d)
the applicant must have no other
remedy.
[9]
Applications for suspensions of mandatory orders, pending reviews
befit interim interdicts,
and are granted daily in busier High Courts
and Magistrates' Courts. In fact, quite often, the PP' s remedial
action has been suspended
with interim orders pending reviews of the
PP's reports. It was thus correctly conceded by counsel for the PP
that normally these
interim orders are not opposed by the PP. In
accordance with this "normal practice" the President
applied and expressed
this practice in a letter to the PP dated 19
June 2019 and is set out as follows:
"6.
In relation to your direction to submit my Implementation Plan, I
reply as follows:
6.1
I
have noted the findings against Minister Gordhan in your report;
6.2
I
have noted, too, the assertions made by Minister Gordhan in his
review application that your report falls to be reviewed and set
aside because it is allegedly ultra vires section 6 ( 9) of the
Public Protector Act, issued by means of an unfair procedure and
tainted by misdirections of law and fact.
6.3
One
of the legal complains raised by Minister Gordhan is that the
direction that I take appropriate disciplinary action against
him is
'vague and impossible to implement in the absence of an employment
relationship between the President and myself
'
6.4
Having
considered the findings against Minister Gordhan in your report and
his challenges to those findings in his review application,
I have
concluded that it would be inappropriate to take disciplinary action
against Minister Gordhan at a time when
6.4.1 not only is
there a dispute pending before the High Court over the legality of
the findings on which to base such
disciplinary action, but also
6.4.2 my alleged
power to exercise such disciplinary action is, itself, legally
contested by Minister Gordhan in that
dispute pending before the High
Court.
7.
In
the circumstances, my Implementation Plan in respect of the remedial
action set out in paragraph 7.1 of your report is the following:
7.1
have
complied with the order to take note of the findings against Minister
Gordhan in your report;
7.2
I have concluded that the process of taking
appropriate
disciplinary action against Minister Gordhan would best be served by
waiting until the legal processes of his review proceedings
have
clarified
7.2.1
what disciplinary powers, if any, the Constitution allows me to
exercise over Minister Gordhan beyond
removing him from the Cabinet;
and
7.2.2
whether there are lawful grounds for the exercise of any such
disciplinary powers.
7.3
I
intend, accordingly, to defer my decision on what disciplinary action
if any to take against Minister Gordhan until final determination
of
his review application.
8.
I trust that you are satisfied with this Implementation Plan. If you
are not
so satisfied, and require me to exercise any disciplinary
powers I may have over Minister Gordhan before his review proceedings
have been finally determined, I invite you to approach the High Court
for an order compelling me forthwith to do so."
[10] In
the PP's response dated 26 June 2019 she replies as follows:
"3.
...
It
is clear from the above that any advice to the effect that a review
application stays the implementation of the remedial action
is
incorrect and is a sheer display of cluelessness on the person giving
such advice.
4.
To this end, the President's letter is not only based on the wrong
understanding of the law but on a mere assurance by a third party
that the President should not comply with my remedial action.
5.
The President's refusal to act on my remedial action is a failure
on the President's part to uphold the Constitution.
7.
The Public Protector will therefore persist with the enforcement of
the implementation of the remedial action to the parties directed
against until such time that an interim order interdicting same
is
obtained."
[11] The
President reacts to this letter on the 3
rd
of July 2019
setting out that he fears that the PP has misunderstood his letter of
19 June 2019 in that he has not refused to act
on the PP's remedial
action. He,
inter alia,
also states:
''I believe that, applying the
principle of the SCA judgment to the present situation, it is
perfectly in keeping with public and
legal policy for me not to
undermine the legal process by determining that which the High Court
has been called upon to decide
in the dispute between Minister
Gordhan and yourself.
As proceedings in the review
applications unfold, the state of affairs in relation to appropriate
action may well change. Should
this happen I will promptly notify you
of any resultant changes to my implementation plan.
"
In her further response the PP in
paragraph 9 of a letter dated 9 July 2019 sets out as follows:
"9.
I fear that the Honourable President's persistence on wilful non-
compliance with my remedial action, which is based on the Honourable
President's incorrect interpretation of the law, is not only
ostensibly contemptuous of my office by also borders on a breach of
the Honourable President's constitutional duties, as spelt
out in the
Constitution.
12.
I therefore plead with the Honourable President to avert the
constitutional
crisis alluded to above by taking head of my advice
and implementing the remedial action as set out in the Report or
obtaining
a court interdict to stay the implementation pending the
outcome of the review proceedings or even causing the implicated
and/or
affected public officials to do so. Such orders are sought and
obtained daily in our courts in respect of review applications
targeted
at ordinary administrative action, let alone the remedial
action of the Public Protector, which almost ranks as a court order
in
its binding effect.
"
[12] The
question thus is why does the PP not follow the "normal
practice" as confirmed in her
correspondence in this
application, but labels it as extra-ordinary? It was submitted that
the PP is opposing the granting of the
application because of her
duty to defend the independence, impartiality and dignity of the
Office of the PP as well as her person.
This flows from the averred
vexatious, scandalous and irrelevant matter set out in the founding
affidavit of Gordhan.
[13] It is
also opposed on the basis that in terms of the OUTA-decision this
court will intrude in entering
the exclusive terrain of another
branch of government, will negate the separation of powers and is not
the clearest of cases wherein
an interim order should be granted. The
EFF expanded hereon in that this application does not warrant
judicial intrusion into the
exclusive terrain of a Chapter 9
institution.
Does Gordhan, as supported by
the President, Pillay and Magashula, make out a
prima facie
right
even if it is open to some doubt?
[14] The
first ground of
review
is that the PP has no jurisdiction in
that she is barred to entertain the complaints under s6 (9). S6 (9)
of the PP Act reads as
follows:
"Except where the Public
Protector in special circumstances, within his or her discretion, so
permits, a complaint or matter
referred to the Public Protector shall
not be entertained unless it is reported to the Public Protector
within two years of the
occurrence of the incident or matter
concerned."
As the complaints relating to
Gordhan flows from a meeting in 2010 and the establishment of an
investigative unit in
2007
the Public Protector was not
entitled to entertain these complaints.
[15] In
the report, para 3.5 the Public Protector regurgitates the factors
setting out that could constitute
special circumstances.
Surprisingly, no factors are set out as to what she considered, and
why,
in casu
it constitutes special circumstances. In view of
the provisions of this section and the fact that the complaints
emanate from a
decade ago, one would expect the Public Protector to
set out why she had jurisdiction to entertain this claim. It is thus
argued
that on the report itself, without establishing jurisdiction,
Gordhan has a
prima fade
right on review.
[16] In
the Public Protector's answering affidavit she baldly avers that all
the review grounds are without
merit and are denied.
[2]
[17] In
argument counsel for the PP did not address the jurisdiction issue at
all.
[18] The
EFF in the papers justify the jurisdiction of the PP in that Gordhan
testified before the Nugent
and Zondo Commissions about the "Rogue
Unit" without a complaint about the events occurring many years
ago. It was argued
that this argument is unmeritorious and is
rejected. The Commissions had terms of reference whereas the PP has
to execute her duty
in terms of the PP Act. In terms of s6 (9) the PP
shall not
"entertain complaints after two years unless per
special circumstances exist':
It is trite that the PP would have
to identify the special circumstances, not the EFF.
[19]
Gordhan in a letter dated 2
7
March 2019 requested
identification of the special circumstances, however the PP never
responded thereto. On 16 April 2019 Gordhan
again requested the
special circumstances to be identified. In the PP's response she
submitted that the special circumstances related
to illegally
acquired surveillance equipment which was acquired at an astronomical
cost, which is still being utilised to intercept
communications and
therefore it constituted a special interest as public funds were
still being used for illegal purposes. Even
if this could constitute
special circumstances, this is not forwarded as a special
circumstance in the report and can in any event
not sustain a special
circumstance about the averred misleading of the Parliament by
Gordhan.
[20] The
EFF then proffers a special circumstance, not proffered by the PP,
i.e. the public interest to
an unlawful unit at SARS. The PP, not the
EFF, must exercise a discretion; the PP has not forwarded the public
interest as a special
circumstance.
[21] On
these submissions and arguments Gordhan has established a
prima
fade
right for the interdict to be granted.
The
finding that Gordhan violated the Executive Ethics Code in
deliberately misleading the National Assembly
[22]
Paragraph 2.3(a) of the Executive Ethics Code reads as follows:
''Members of the Executive may
not
...
wilfully
mislead the Legislature to which they are accountable."
The review grounds set up by
Gordhan is that he did not wilfully mislead the National Assembly.
The PP found that Gordhan dishonestly
concealed the fact that at the
"Ambani meeting" there was a Gupta present. Gordhan sets
out that until today he cannot
recall that a Gupta was present, but
his Chief of Staff informed him in preparation for his evidence at
the Zondo Commission that
there was a Gupta present at that meeting;
he without an independent recollection thereof disclosed this fact to
the Commission.
[23] The
EFF submitted that it matters not that Gordhan may not wilfully have
misled the Legislature, an
innocent mistake is sufficient. This is of
course
contra
the wording of paragraph 2.3(a) of the Code
specifying that it must be done wilfully.
[24]
On these facts Gordhan has established a
prima facie
right.
The establishment of the SARS
Investigative Unit
[25]
In this ground of review Gordhan submits
the decision of the PP is irrational and fundamentally flawed. SARS
has as its objective
the efficient and effective collection of
revenue and control over the import, export, manufacture, movement,
storage or use of
certain goods.
[3]
SARS has always had investigative and enforcement units that
investigated
inter alia
tax
evasion and elicit trade. It had a mandate to minimise the
importation, exportation and manufacturing of drugs, as well as the
illegal harvesting of abalone and its supply, the illegal importation
of second-hand vehicles and the importation of counterfeit
goods. It
also had a mandate to curb the smuggling of cigarettes. Sections 4A
to 40 of the Customs Act clothes SARS with wide investigative
powers.
[26] To
crack down on elicit trade and to combat organised crime SARS needed
to enhance its intelligence
gathering. To this end SARS and the
National Intelligence Agency ("NIA") entered into
discussions to develop within NIA
a capacity to support SARS in
investigating economic crimes with tax implications. An unsigned MOA
followed, due to the NIA losing
its appetite to proceed with such a
unit within the NIA.
[27] On 8
February 2007 Pillay recommended that SARS create a specialist
internal capacity to focus on the
elicit economy. On 13 February 2007
this proposal was approved by the Chief Officer for Corporate
Services, Magashula. A unit to
investigate and clamp down was thus
established lawfully in terms of SARS' objectives, mandate and
legislation.
The PP relies on the Sikhakhane
panel's finding that the SARS investigative unit was unlawful because
it contravened section 3 of
the National Strategic Intelligence Act
39 of 19 94 ["NSI Act"]. S3 (1) of the NSI Act prior to its
amendment in 2013
reads as follows:
"If any law expressly or
by implication requires any department of State, other than (the NIA)
or (SASS), to perform any function
with regard to the security of the
Republic or the combatting of any threat to the security of the
Republic, such law shall be
deemed to empower such department to
gather departmental intelligence, and to evaluate, correlate and
interpret such intelligence
for the purpose of discharging such
function; provided that such department of State
-
(a)
(b)
shall not gather departmental
intelligence within the Republic in a covert manner ... "
Gordhan submits that this section
was not contravened because it applied only to those departments of
state that were by law required
to perform functions
"with
regard to the security of the Republic or the combatting of any
threat to the security of the Republic.”
[4]
SARS was clearly
not such a department. Furthermore s3 ( 1) did not prohibit all
covert intelligence gathering, only covert
"departmental
intelligence''. 'Departmental intelligence" is
defined
in the NSl Act as:
''intelligence
about any threat or potential threat to the national security and
stability of the Republic.
"
[28] The
PP found that the establishment of the SARS' unit
"was
in breach of section 209 of the Constitution in terms of which only
the President may establish such covert information
gathering
unit.'
[5]
Section 209(1)
reads:
"any
intelligence service, other than any intelligence division of the
defence force or police service, may be established
only by the
President, as head of the national executive, and only in terms of
national legislation."
It
was submitted that SARS is not an intelligence service and the
definition of
''intelligence"
in the Act is in
fact:
"for
purposes of informing any government decision or policy-making
process carried out in order to protect or advance the
national
security."
SARS
is thus not affected by s209 as its application is confined to the
establishment of intelligence services dedicated to the
protection of
national security.
[29] The
EFF strongly submits that SARS was spying on citizens without
warrants, correct channels and no
proper oversight. This submission
seemingly relates to interception of communications. Nowhere did the
PP find that the investigative
unit was a spying unit and this
ex
post facto
justification on behalf of the PP, it was argued, is
to be rejected.
[30] There
was no evidence that this was the purpose of this unit and that is in
fact what occurred.
I am satisfied that on these
grounds raised there is a
prima facie
right established on
behalf of Gordhan.
Mr.
Pillay' s qualifications
[31] The
PP finds that Pillay was not qualified for appointment as Deputy
Commissioner. Pillay' s appointment
was thus irregular and in
violation of s195 of the Constitution.
[32] On
behalf of Pillay and Gordhan it was submitted that it is common cause
that there is no prescribed
requirements in law or policies for
appointment as Deputy Commissioner of SARS. On this basis the fact
that Pillay has no tertiary
education does not offend any law or
policy. Pillay's experience in the public service from January 19 95
was the basis for his
appointment and his appointment was accordingly
proper, regular and lawful.
[33]
Pillay under oath stated that the finding that he has no matric
certificate is malicious and fatally
flawed. Pillay will, on return
from overseas, launch review proceedings in his own name or asked to
be joined in these review proceedings.
Pillay associated himself with
the contentions raised by Gordhan. It was submitted there is in law
or fact no reason for the PP
and the EFF to oppose the interim relief
sought by Gordhan.
This ground raised by Gordhan,
supported by Pillay establishes a further
prima facie
right
for the interim relief.
The PP did not afford Gordhan
an opportunity to be heard by making representations before meting
out the remedial orders
[34]
As
Gordhan has already established a
prima
facie
right I cursorily address this
issue. I do not do so as it is unimportant, or has no prospects of
success, but simply in urgent
matters time is a luxury and to
belabour further
prima facie
rights
is essentially redundant.
[35]
For this reason I do not address the
ground on review pertaining to recruitment of personnel for the SARS'
investigative unit.
[36]
Gordhan relies on s7( 9 )(a) of the PP Act which renders it mandatory
for the PP to afford any person
an opportunity to respond to adverse
findings. It is argued that even on a narrow interpretation this
would include an opportunity
to submissions prior to a penalty. An
analogy was drawn with making submissions in a criminal trial prior
to sentencing.
[37]
Gordhan also relies on the common law
principle of
audi alteram partem
as
endorsed in
Masethla v President
of the RSA
[2007] ZACC 20
;
2008 (1) SA 566
(CC)
at paras 74 and 75. In support
of this ground a further argument raised and relied on is the rule of
law itself; one must be heard
when it is rationally required. This
principle was enunciated in the matter of
MERSA
v PG Group
[2019] ZACC 28
(15
July 2019) paras 47 -51, 64 and 114-119.
[38]
Gordhan has once again set out a
prima
fade
right for an interim interdict
to be granted.
The PP's bias and ulterior
purpose
[39]
Gordhan in no uncertain terms avers that the PP is incompetent,
irrational and negligent in the performance
of her duties.
[40] In
this application however, these averments have no influence on the
judgment and no cognisance is
taken of these averments, simply
because these averments are not relied on for the interim order. Mr.
Trengrove on behalf of Gordhan
did not argue this issue because this
debate is not relevant to the determination of Part A.
Adv. Masuku (SC) for the PP
however argued that these averments are the foundation for the
opposition of the PP and her office;
i.e. to preserve the dignity of
the PP and the office of the PP. This is crucial because for the PP
to fulfil her functions she
must have the cooperation of all the
organs of state. If this court were to grant the suspension order it
would weaken her office
and suspension would prevent accountability.
The allegations made by Gordhan in unacceptable court language
undermines the dignity,
independence, impartiality and effectiveness
of the Public Protector.
[41] The
argument on behalf of the PP is to be rejected. The bias and ulterior
purpose, if proven, constitute
grounds for the review of the PP's
decision. These allegations do not form a basis for the interim
interdict and accordingly has
no role to play. It would be premature
for this court to strike out any allegations not relevant to Part A
of the application.
Gordhan relies on this ground of review as a
breach of the PP's duty in terms of s1(1) and 181(2) of the
Constitution as well as
s3(13)(a) of the PP Act.
[42] The
suspension of the order of the PP does not weaken her office; as she
herself has set out suspension
of her orders are granted pending
review. Much criticism was levelled at the President in not
supporting the PP as is required
from him in terms of the
Constitution. The President cannot be criticised for awaiting a
court's decision on suspension of the
remedial orders before acting.
The President is acting in accordance with the law of the land before
he implements any remedial
action. In any event, the PP has conceded
that the President is uncertain about his power to discipline members
of the Executive
given that they do not fall within the classical
definition of employees, but serve at his pleasure. In contrast, the
EFF argued
that there is no bar to the President taking disciplinary
steps, like shouting, at Gordhan. The mere fact that the opposing
parties
differ on this question renders the review application
apposite.
[43] In
summary thus: this court need not and did not rely on the review
grounds that the PP acted with
ulterior purpose and bias when finding
as the PP did and ordered as she did. This is a debate for the review
application.
[44]
Gordhan has thus established a
prima facie
right for the
interim relief sought.
Irreparable harm
[45] The
harm to Gordhan in that he must be
inter alia
disciplined by
the President, appear before the Parliamentary Ethics Committee, be
criminally investigated seemingly by the Commissioner
of Police
himself, has serious consequences for him. The report maligns him as
being untruthful and a spy and would impact his
political career and
his personal circumstances.
[46]
Before I address the above-mentioned argument on behalf of Gordhan it
would be remiss of this court
not to remark on the remedial orders of
the PP. This court had to study the report and remedial orders in
order to ascertain whether
in fact there is irreparable harm to
Gordhan. Much of the orders are vague, contradictory and/or
nonsensical. The President is
ordered in paragraph 8.1.1 of the
report to take note of the PP' s findings and to take appropriate
disciplinary action against
Gordhan. The expiry date attached to this
order is the 4th of August 2019. In para 9.1 it is ordered that the
President must within
30 days of the issuing of the report submit an
Implementation Plan to the PP for her approval,
"indicating
how the remedial action referred to in paragraph 7. I of her report
will be implemented."
There is no remedial order in
paragraph
7
.1; the order is thus nonsensical. Furthermore the
order to within 30 days submit a plan for approval detailing the
disciplinary
action and at the same time ordering that the
disciplinary action be taken within 30 days is inexplicable.
[47] The
remedial action ordered against the Speaker has the same
contradiction; the Speaker must within
14 days refer the findings
against Gordhan to the Joint Commission on Ethics and be implemented.
Paragraph 7.4 has no remedial
action set out therein.
[48] In
paragraph 8.5 the PP orders the Commissioner of Police to investigate
the criminal conduct of Messrs
Gordhan "and others" for
violation of s209 of the Constitution and s3 of the NSI Act. Both
sections do not create criminal
offences.
[49] On
behalf of the PP and EFF it was argued that if the remedial orders
are suspended then Parliament
would be prevented from performing its
oversight functions and frustrate the oversight role of Parliament.
An interdict would interfere
with the Minister of State Security's
executive and legislative functions. An order interdicting the NDPP
from performing constitutional
functions is incompetent. Furthermore
an interdict preventing the Commissioner of the Police to exercise
his duty would be unconstitutional.
[50] When
assessing irreparable harm the court must also carefully probe
whether and to which extent the
restraining order will probably
interfere into the exclusive terrain of another branch of Government.
“
The
enquiry must, alongside other relevant harm, have proper regard to
what may be called separation of powers harm.”
[6]
[51] The
harm to Gordhan speaks for itself. The harm would be irreparable if
the interdict is not granted.
Being prosecuted, disciplined and
investigated most certainly constitutes harm and the harm may be
irreparable and irreversible
by the time the review application is
heard, especially so if the review application is successful. There
is no harm to the PP
or her office if the remedial action is
suspended pending review. This is not a final order and if the review
is to be unsuccessful
the remedial actions are to commence. This
matter constitutes a clear case where judicial interference is
warranted. The PP and
her office can fulfil their constitutional
duties in her office with the suspension order not interfering with
her constitutional
duties at all. Suspension of her orders has most
certainly not interfered with her constitutional duties in other
matters. The
mere fact that parties have abided to the court's
decision is not an acquiescence to the remedial orders of the PP.
Balance of convenience
[52]
“
The
balance of convenience enquiry must now carefully probe whether and
to which extent the restraining order will probably intrude
into the
exclusive terrain of another branch of government.”
[7]
[53]
The EFF and the PP placed must reliance on this factor as a bar to
granting the interim interdict.
It was argued that the PP is the
constitutional last line of defence and interim relief at the behest
of the Executive, the branch
of Government the PP is meant to
supervise would be blurred to a mere Maginot line. The PP acted
within her statutory powers and
a court cannot interfere therewith.
If the interdict is granted the judiciary will be intruding with the
legislative and constitutional
terrain of the constitutional
institutions tasked with executing the remedial actions. These
arguments are askew simply because
the
ratio
and test set out
in the
OUTA
decision favours Gordhan in these circumstances.
This is so, because it is the PP who seeks to interfere with the
exercise of statutory
powers by directing the President, the Speaker,
the Minister of State Security, the NDPP and the Commissioner of
Police how to
exercise their powers and perform their functions.
[54]
The balance of convenience favours
Gordhan as the incidents complained of happened a decade ago, there
is no urgency thus in awaiting
a determination on the review
application.
[55]
There is no harm to the PP in awaiting
the outcome of the review decision versus the harm that will befall
Gordhan if the interdict
is not granted. The balance of convenience
thus favours the granting of the interdict.
No
other satisfactory remedy
[56]
There is simply no suitable alternative
remedy available to Gordhan in view of the binding nature of the
remedial action. No serious
argument on behalf of the EFF and the PP
was in any event raised pertaining to this requirement. Gordhan
accordingly also satisfies
this requisite for an interim interdict.
Magashula'
s opposition
[57]
Magashula also abides the court's decision, but supports Gordhan in
this application as well as in
the review application. I do not find
it necessary to deal in this application with any further submissions
made by Magashula,
except that in the remedial action the
Commissioner of Police is to within 60 days investigate Magashula's
"conduct of lying under oath."
This averred perjury
is placed in dispute.
Costs
[58]
The costs would generally follow the
result. It was however argued that the EFF and PP and the PP's office
should not pay the costs
on the
Biowatch
principle.
[8]
[59]
The
Biowatch
principle is however to be
distinguished from the matter at hand. This principle can be
summarised as follows:
''It bears repeating that what
matters is not the nature of the parties or the causes they advance
but the character of the litigation
and their conduct in pursuit of
it. This means paying due regard to whether it has been undertaken to
assert constitutional rights
and whether there has been impropriety
in the manner in which the litigation has been undertaken."
[9]
Thus
in the words of Sachs J: "
"What matters is whether
rich or poor, advantaged or disadvantaged, they are asserting rights
protected by the Constitution.''
[10]
[60] Part
A of the application before this court does not constitute
constitutional litigation. It is an
interim interdict to suspend
remedial orders pending a review. The EFF and PP has attempted to
label the litigation as constitutional,
but the character of the
litigation before me is not of parties claiming their constitutional
rights, but rights to prevent a harm
flowing from a report that is
challenged. It is conceded on behalf of the PP and her office that
this is normal practice; to now
assert that suspension threatens the
office of the PP as a Chapter 9 institution is far-fetched, ingenious
nor substantive and
does not raise truly constitutional
considerations relevant to the adjudication of Part A.
[61] It
would be incorrect to start the costs enquiry with a characterisation
of the parties, it matters
not that it is a Minister of the Executive
versus a Chapter 9 institution. It matters not that the EFF is
averdly opposing the
interim interdict in the public interest. The
EFF should not get a privileged status simply because it is acting in
the public
interest.
[11]
Equal protection under the law requires that the costs award not be
dependent on whether the parties are acting in their own interests
or
in the public interest.
[12]
Suspension of a remedial order does not threaten the entrenched
rights of the PP. The separation of powers harm on the balance
of
convenience favours Gordhan. Gordhan will, if the suspension 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 as the basis for 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 a Minister. The mere
fact that the Minister does so, does
not weaken the PP's powers. The
fact that the President is abiding the decision and also raises an
issue to be decided in the
review
application
pertaining to what disciplinary steps a President can take against a
Minister is a valid point and in fact will serve
as guidance to the
PP, if and when, another Minister is the subject of a PP report. Thus
opposing the suspension in Part A, was
baseless, with both the EFF
and the PP and her office not seriously attacking the requirements
necessary for an interim interdict
and accordingly as unsuccessful
litigants should carry the costs.
[62] I
accordingly make the following order:
6 2.1 Part A of this
application is dealt with as one of urgency. The applicant's failure
to comply with the Rules of
this Court is condoned.
6 2.2 The remedial
orders in paragraph 8 of the Public Protector's report 3 6 of 2019/20
of 5 July 2019 are suspended
pending the final determination of Part
B of this application.
62.3 The Public
Protector or the office of the Public Protector are interdicted from
enforcing the remedial orders
pending the final determination of Part
B.
62.4 The first,
second and tenth respondents are ordered, jointly and severally, to
pay the applicant's, eighth
respondent's and ninth respondent's
costs, which costs will include the costs consequent upon the
employment of two counsel.
S. POTTERILL
JUDGE OF THE HIGH COURT
CASE
NO:
48521/19
HEARD
ON:
23 July 2019
FOR
THE APPLICANT: ADV.
W. TRENGROVE SC
ADV. M. LE ROUX
ADV. O. MOTLHASEDI
INSTRUCTED
BY:
Malatji & Co
Attorneys
FOR
THE 1
st
and 2
nd
RESPONDENTS:
ADV.
T. MASUKU SC
ADV. T. MANKGE
INSTRUCTED
BY:
Seanego Attorneys Inc.
FOR
THE 3'd RESPONDENT:
ADV. M. CHASKALSON SC
ADV. B. LEKOKOTLA
INSTRUCTED
BY:
State Attorney, Pretoria
FOR
THE 5
th
RESPONDENT:
ADV. H.O.R. MODISA
INSTRUCTED
BY:
State Attorney, Pretoria
FOR
THE 3th RESPONDENT: ADV. R. HUTTON SC
ADV.
C. VAN CASTRICUM
INSTRUCTED
BY:
Werksman Attorneys
FOR
THE 9
th
RESPONDENT: ADV.
P.J. DE JAGER SC
INSTRUCTED
BY:
Savage Jooste & Adams Attorneys
FOR
THE 10
th
RESPONDENT:
ADV. T. NGCUKAITOBI
ADV. P.J. DANIELL
DATE
OF JUDGMENT: 29 July 2019
[1]
s172(1) of the Constitution
[2]
Paragraph 32 of the answering affidavit
[3]
s3 of SARS Act 34 of 1997
[4]
Section 3(1)
[5]
Paragraph 7.2.5 of the report
[6]
OUTA
decision para 47
[7]
OUTA
decision para [47]
[8]
Biowatch Trust v Registrar, Genetic Resources
2009 (6) SA 232
(CC)
[9]
Biowatch
matter para [20]
[10]
Biowatch
matter para [17]
[11]
Biowatch
matter para [18]
[12]
Biowatch
matter para [16]