Public Protector disappointed with North Gauteng High Court judgment

The Public Protector has expressed disappointment at Monday’s ruling by Judge Sulet Potterill of the North Gauteng High Court in the case brought by Minister of Public Enterprises, Mr. Pravin Gordhan, against her office. Minister Gordhan was seeking an interdict to suspend the implementation of the remedial action set out in paragraph 8 of the Public Protector’s “Rogue Unit” report.

In the report, the Public Protector found, among other things, that Minister Gordhan deliberately misled the National Assembly in failing to disclose a meeting with a member of the Gupta family, established an intelligence unit in violation of intelligence prescripts during his tenure as SARS Commissioner and that Mr. Ivan Pillay was appointed Deputy SARS Commissioner and subsequently Commissioner whilst he did not possess the necessary qualifications.

The remedial action taken included that President Cyril Ramaphosa should take note of the findings and take appropriate disciplinary action against Minister Gordhan, that the Speaker of the National Assembly should refer the findings against Minister Gordhan to the Joint Committee on Ethics and Members’ Interests for consideration and that the Minister of State Security should ensure that all intelligence equipment utilised by the SARS intelligence unit is returned, audited and placed into the custody of the State Security Agency.

With respect, the Public Protector is of the view that Judge Potterill overreached. Instead of confining herself to matters relating to Minister Gordhan’s application for the staying of the implementation of remedial action, the judge went beyond her scope and dealt with merits of the review application.

In addressing matters she had not been called upon to hear and pronouncing on issues that were not placed before her, Judge Potterill effectively tied the hands of and pre-empted the outcome of the review court. This raises the question whether there is still a need to continue with review proceedings.

Further, it is curious that the judge deemed it fit to ventilate Mr. Pillay’s qualifications or lack thereof and pronounce on the issue, and yet held that the disparaging remarks that Minister Gordhan made against Adv. Mkhwebane in his application for both the review and the interdict, which the Public Protector had requested the court to strike out, be deferred for the review proceedings.

The Public Protector has also not taken kindly to the fact that, in her ruling, Judge Potterill relied on correspondence between her office and President Ramaphosa even though the letters concerned had nothing to do with the “Rogue Unit” matter before her but related instead to the Pillay pension investigation. In addition, these documents were only handed in at court on the day of the hearing and other parties had not been favoured with an opportunity to engage on them.

Also of concern to the Public Protector is Judge Potterill’s use of language that is unbecoming of a judicial officer and which does not accord with the decorum of the court. In her ruling, the judge outrageously labelled the Public Protector’s remedial action “nonsensical”. The Public Protector is considering the legal recourse and remedies available to her including forwarding this matter for the consideration of the Judicial Services Commission.

Another source of disquiet for the Public Protector is the recent scourge of separating her from the office she holds which Judge Petterill now appears to be perpetuating. In this instance, she made a personal costs order even though none of the parties argued for that.

Adv. Mkhwebane will appeal Judge Potterill’s ruling.

END.