Counsel for the Economic Freedom Fighters, Tembeka Ngcukaitobi, faced intense questioning at the Constitutional Court on Thursday when he sought to persuade the justices that courts should treat interim interdicts against the public protector differently to other interim interdicts.
Thursday’s hearing saw the justices and counsel grappling with some of the legal implications thrown up by the Constitutional Court’s previous judgment in the Nkandla case. The number of court cases against the public protector has increased significantly — an “inevitable” result of the Nkandla decision, suggested her counsel, Thabani Masuku SC.
That judgment decided that public protector reports must be implemented unless set aside by a court.
One of the big questions on Thursday — raised pertinently by the EFF — was whether the existing test for the granting of interim interdicts, pending final resolution of litigation, was appropriate when dealing with the public protector.
The case was an appeal against the interim interdict ordered by Sulet Potterill in the Pretoria high court. Mkhwebane had in her report found that there was an unlawfully created investigation unit at the South African Revenue Service that went “rogue” and was illegally spying on people. She directed far reaching remedial action, including that President Cyril Ramaphosa take disciplinary action against Public Enterprises Minister Pravin Gordhan, who was finance minister at the time.
Judge Potterill’s order suspended the remedial action until Gordhan’s court review of the report has been finally determined. In making her decision, she applied the existing rules of interim interdicts, as earlier set out by the Constitutional Court in its Outa decision on e-tolls.
But on Thursday, Ngcukaitobi argued that the highest court should tailor a “public protector-specific” test for an interim interdict, which would only be granted in the strictest of circumstances.
He said this was necessary in order to protect the effectiveness and accessibility of the public protector as an institution. If it was too easy for public officials to get interdicts, it would defeat the whole purpose of the public protector — a quick way for average people to address maladministration by the state.
The public protector would then become a paper tiger, he argued.
But Justice Mbuyiseli Madlanga suggested that the Constitutional Court had already said, in the Outa judgment, that courts should be slow to grant interim interdicts against the exercise of statutory powers and should only do so in exceptional cases. Why was Ngcukaitobi asking for “exceptional, exceptional?” he asked.
Ngcukaitobi responded that it was not so much about exceptional exceptional but rather that the court should consider different factors when it came to the public protector than what was considered in Outa — in particular the courts should factor in whether granting the interdict would impact on the public protector’s effectiveness and accessibility.
But, asked Justice Zukisa Tshiqi, the report was done and dusted, and it was released. How would an interim interdict hinder the public protector in the exercise of her powers, or prevent her from exercising her functions, she asked.
Variations of these two questions were repeated by a number of the justices. How, asked Justice Sisi Khampepe, would a temporary halt of an order of the Public Protector make her office less accessible? In his replying argument, Ngcukaitobi said that if the Constitutional Court were to go for a “refined Outa test” rather than a completely new test, it should include the accessibility and effectiveness of the PP’s office as one of the factors to consider.
Ngcukaitobi said it was important that the test developed by the Constitutional Court should be based on the ordinary person — “Gogo Dlamini” — whose pension had not been paid, rather than powerful litigants like the president and a government minister.
However counsel for the president, Matthew Chaskalson SC, said the case before the Court was not a Gogo Dlamini case and that the Outa test, as it stood, would be able to cater for Gogo Dlamini’s case.
Another question apparently preoccupying the justices of the Constitutional Court was about the principle of audi alteram partem — the protector’s duty to listen to those who she investigating and who she may make findings against. In her “rogue unit” investigation, Mkhwebane did give hearings to Gordhan and former acting Sars Commissioner Ivan Pillay, but only on her intended findings — not on the remedial action she ultimately took against them.
Masuku argued that this was sufficient to satisfy the audi requirements of the Public Protector Act and the Constitution. But Madlanga suggested that his argument would mean that the position under the Constitution was less progressive than that under the common law: “Your submission is that the Constitution has introduced a retrograde step. Can that be so?,” he asked. Masuku answered that it would depend on what kind of remedial action had been directed by the Public Protector.
Counsel for Gordhan, Wim Trengove SC went, in detail, through the remedial orders from Mkhwebane in the report. They included the “bizarre” order to implement a report (at the time classified as secret) from the Inspector General of Intelligence, which she pretended not to have read, he said. There was also an instruction to the police to investigate an alleged breach of laws, but which disclosed no criminal offence (not every breach of law is a criminal one). And her remedial action directed at Ramaphosa went right “to the very heart of discretionary executive power”.
Trengove said the remedial action was “a reckless attempt to make findings against Minister Gordhan, and some of her remedial orders were “incoherent, unlawful and bizarre”. Yet all of these remedial orders were made without anyone being given a hearing on them, he said.
Ross Hutton SC, counsel for former acting Sars commissioner Ivan Pillay, said Pillay had specifically asked to address the PP if she decided to take remedial action against him. “He was simply ignored,” Hutton said. And even at the hearing he was given — to respond to her preliminary findings — the public protector simply disregarded everything he had to say, said Hutton. Pillay “got a hearing, but he was not listened to at all”.
The “unfortunate” language used in the litigation was also something canvassed with counsel. From the beginning of the litigation, Masuku took issue with the allegations made by Gordhan that the Public Protector’s report had an ulterior motive. He said Gordhan had accused Mkhwebane of corruption and of being part of a state capture project – the kind of statements any court should be concerned about. He also took issue with how Gordhan’s court papers referred to Mkhwebane’s “crass” mistakes.
Chaskalson referred to a letter the president received from the public protector, which accused the president of a “display of sheer cluelessness” and Trengove took issue with how Mkhwebane spoke of Potterill’s judgment.
Mkhwebane who had relied on a wrong version of the Executive Ethics Code, he said. Yet when this was pointed out by Potterill in her judgment, Mkhwebane responded by saying Potterill’s judgment was a “gross misinterpretation” and that the high court “chose to rewrite” the code. This amounted to an accusation of misconduct of the highest order, said Trengove, and the public protector owed an apology to Potterill.
Justice Chris Jafta said in all his years of being on the bench, he had never come across this kind of a description of a judge’s judgment. Masuku acknowledged that the litigation had been “robust” and would not object if the court wanted to say something on it.
Towards the end of the hearing, Jafta ruminated on the effect all this litigation was having on the fiscus. Masuku said that if public officials were properly fulfilling their duty to protect and support the institution of the Public Protector, there shouldn’t be so much litigation.
But Jafta appeared skeptical: “It’s unavoidable that the reviews are going to be there, and it seems to me that it’s going to be very expensive.”