ConCourt hears arguments in legal battle between Gordhan, Mkhwebane

On Thursday the Constitutional Court heard arguments around the power of courts to suspend the implementation of remedial action ordered by the Public Protector.

The apex court was approached by the Economic Freedom Fighters (EFF) and Public Protector Busisiwe Mkhwebane after a ruling against them by the High Court in Pretoria.

The High Court had granted Pravin Gordhan and President Cyril Ramaphosa an interim interdict against the remedial action Mkhwebane instructed Ramaphosa to take against the Minister of Public Enterprises.

The matter relates to the establishment of the so-called "rogue unit" within the South African Revenue Service (Sars).

RELATED: 'Recordings prove Moyane knew SARS unit wasn't rogue'

702's Joanne Joseph gets clarity from Pierre de Vos, Claude Leon Foundation chair in Constitutional Governance at the University of Cape Town (UCT).

The constitutional law expert says at the heart of the case is the question of when a lower court should grant an interdict to halt the implementation of the Public Protector's remedial action, which is binding.

Is there a situation where the court will actually undermine the Public Protector if they give an interdict, or the opposite argument: What happens if the remedial action is implemented while there is a court case going on and then the case reviews and sets aside the remedial action, but then all the remedial action has already been implemented with negative impact on those affected?

Pierre de Vos, Claude Leon Foundation chair in Constitutional Governance - UCT

Professor de Vos says it is not an easy matter to decide.

Just because the judge has asked certain questions during the hearing doesn't mean that they will come out in a specific way. But judged by questions asked today, much more difficult questions were asked of the EFF and the Public Protector's lawyers than of the president and Mr Gordhan's lawyers.

Pierre de Vos, Claude Leon Foundation chair in Constitutional Governance - UCT

They were asking what exactly would be the harm to the Public Protector if she just waited until such time as the court case reviewing and deciding whether to set aside her report has been finalised.

Pierre de Vos, Claude Leon Foundation chair in Constitutional Governance - UCT

For more detail, take a listen to the audio in the clip below:


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