ConCourt settles the law on the public protector and interim interdicts

NEWS ANALYSIS

It’s hard to imagine that there could be so much noise and kerfuffle about interim interdicts. They even sound boring. But throw in public protector Busisiwe Mkhwebane, Public Enterprises Minister Pravin Gordhan, the so-called rogue unit, the Economic Freedom Fighters, President Cyril Ramaphosa and the Nkandla judgment and, well, suddenly a case about an interim interdict is trending. There are even hashtags.

The report at the centre of the case was one in which Mkhwebane 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 Ramaphosa take disciplinary action against Gordhan, who was finance minister at the time. 

But, politics and noise aside, the judgment from the Constitutional Court on Friday settled an important and new question of law. It has only been since the Nkandla judgment in 2016 that it was clarified that remedial action directed by the public protector is binding unless it is challenged in court. Once the courts clarified this, it threw up new questions, one of them being what is to happen in the meantime when someone does challenge a report in court. 

More specifically, how easy should it be for them to get an interim interdict — putting the public protector’s remedial action on hold until their case has been decided?

The EFF made an argument that, because of the crucial role played by the public protector in holding government officials to account, her remedial action should only be stopped in its tracks in the most extraordinary circumstances. 

But the highest court was not convinced. “This argument, while novel and interesting, has no merit,” said Acting Deputy Chief Justice Sisi Khampepe on behalf of a unanimous court.       

The existing test for when to grant an interim interdict was good enough. It was “flexible enough to take into account the constitutional role of the public protector”, said Khampepe.

“The president, executive and Parliament all exercise and source their powers and functions from the Constitution, like the public protector. The argument that the public protector exercises a constitutional power does not render her unique to the extent that a stricter test is required,” said Khampepe. 

Nor did the granting of the interim interdict subvert her constitutional powers, as Mkhwebane’s counsel had argued. By completing her report and publishing it, the public protector had performed the duties and functions that the Constitution requires of her, said the judge. 

The judgment also found that the high court had been correct in the way it had applied the law in this case: “I am also not persuaded that the high court misdirected itself on the facts. I am of the opinion that it struck a fair balance between the rights and interests of all the parties concerned. It identified the correct test, applied this test to the facts, and then arrived at a conclusion at which any reasonable court would have arrived.”

The application to appeal was dismissed for having little prospect of success. It was a victory for Gordhan. But it also reversed a particularly stinging part of the high court’s order — that Mkhwebane must pay legal costs in her personal capacity. This order was a “material misdirection” on the part of the high court’s Judge Sulet Potterill, said Khampepe.    

“The traditional tests of bad faith or gross negligence, albeit with a constitutional flavour, were not satisfied. Ordering personal costs where there is no factual basis to support this may have a deleterious effect on the public protector’s discharge of her vital constitutional mandate, whoever the incumbent might be,” said the judgment.  

That settled the law then. But the Constitutional Court also saw fit to, in “concluding remarks”, address some of the noise. Khampepe said “reasoned criticism” and “robust debate” was to be encouraged in a constitutional democracy. “However, there is danger in following populist rhetoric and labelling courts as captured and corrupt, without sound reasons or evidence,” she said.

Similarly, the public protector — a “constitutional servant” — must be respected. “While she may be criticised, these comments should not be perceived as undermining her office and its constitutional powers. To mount a bad faith on her office would surely work to undermine the constitutional project of the Republic.”

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