Christine Botha: Manager, Centre for Constitutional Rights – 10 August 2019
On Thursday, 8 August 2019, the embattled Public Protector (PP) received yet another legal blow when the Pretoria High Court (the High Court) granted the President’s declaratory order confirming that he had complied with the Public Protector’s remedial action against Minister Gordhan.
This remedial action relates to the PP’s investigative report on the approval of former deputy SARS Commissioner, Mr Ivan Pillay’s early retirement pay-out (PP’s report on Pillay-pay-out).
In terms of the High Court’s order, the PP’s remedial action requiring the President to take “appropriate disciplinary action” is essentially deferred, pending the outcome of Minister Gordhan’s review of the PP’s report on Pillay-pay-out (Minister Gordhan’s review application). Mr Gordhan is currently challenging the PP’s report on the Pillay-pay-out and is asking the High Court to set aside the findings and remedial action.
Minister Gordhan’s review, however, is yet to be heard in the High Court.
Considering the many review applications currently involving the PP it is perhaps necessary to take stock of the facts and legal arguments of the President’s urgent application. In brief:
- On 24 May 2019, the PP issued an investigative report concerning the early retirement pay-out of Mr Ivan Pillay and his subsequent retention by SARS. The PP’s report made adverse findings against Minister Gordhan, in his capacity as the then-Commissioner of SARS.
- The PP’s report on Mr Pillay’s pay-out contained various remedial actions, which included directing the President to take note of the PP’s findings and to take “appropriate disciplinary action” against Minister Gordhan for failing to uphold the constitutional values of public administration.
- The President was also directed to submit an implementation plan to the PP within 30 days of the PP’s report, showing how the remedial action will be implemented.
- Merely four days after the release of the PP’s report on Mr Pillay’s pay-out, Minister Gordhan filed a review application of the report with the Pretoria High Court. Minister Gordhan asked the High Court – amongst other things – to declare that the PP failed her constitutional duties in her investigations. He asked that the PP’s findings and remedial action be declared unconstitutional, unlawful and be set aside.
- The President wrote to the PP about her findings, stating he was aware that Minister Gordhan had launched a review of the report. The President held that pending Minister Gordhan’s review application, he did not consider it “appropriate” to take disciplinary action against the Minister at this stage.
- The President advised that his implementation plan was that the decision on “appropriate disciplinary action” would be deferred pending the outcome of the review application.
- The PP, however, in direct response to the President’s correspondence, held that the President was refusing to comply with legally-binding remedial action and that the President was failing to uphold his constitutional duties. The PP said she would persist with the remedial action unless a Court order was obtained interdicting such action.
- In subsequent correspondence, the PP even went so far as to direct the President, as a matter of urgency, to implement the PP’s remedial action on or before 12 July 2019.
- The President’s counsel, however, pointed out that it is unlawful for the PP to impose a deadline for the “appropriate disciplinary action” after the fact. The report itself did not stipulate such a deadline. The President maintained that he was therefore left with no choice but to turn to the Courts to confirm compliance with the PP’s remedial action, or, in the alternative, request the Court to interdict the remedial action pending the outcome of Minister Gordhan’s review application.
A critical point considered by the Court was that the President did not dispute the fact that the PP’s findings were legally binding. The President, however, made it clear that the decision of what constitutes “appropriate disciplinary action” would logically be informed by the Court’s findings in Minister Gordhan’s review. As the President’s court papers crisply put it: “… is it appropriate for the President to decide what is appropriate disciplinary action in the face of the ongoing review?”
The President further argued that the PP’s remedial action did not state when action should be taken or specify the type of action. The President therefore held that he did comply with the PP’s remedial action, as he indicated the decision on what constitutes “appropriate disciplinary action” would be taken after the outcome of the review application.
On delivering the judgment, Judge Molopa-Sethosa said that considering the correspondence between the parties, it was “mind-boggling” that the PP did not consent to staying the remedial action pending the finalisation of Minister Gordhan’s review. Her Ladyship emphasised that any remedial action (such as suspension, or forfeiting of Minister Gordhan’s salary for a month, as apparently suggested by the EFF and the Public Protector’s counsel) would be “irreversible” in the event Minister Gordhan is successful in setting aside the PP’s report.
The Judge further reiterated that the President did not refuse to implement remedial action – he was only deferring such action depending the outcome of Minister Gordhan’s review application.
Considering the facts, the President’s actions were accordingly held to be reasonable and rational, and the Judge granted the President declaratory order confirming that he had complied with the remedial action.
Although this judgment provides legal certainty, it does little to comfort the public that the State is not ‘at war with itself’. Amidst this state of affairs, it is necessary to take stock of the facts, the nature of these legal actions and the relief sought.
The President did not politically take a side – he did not dispute the PP’s binding power, as our former President has done in the Nkandla matter – he gave full recognition thereof. This matter did not touch on the merits of Minister Gordhan’s review application, but it acknowledged that the nature of the review application and its findings would logically impact the form and nature of the disciplinary action to be taken, and therefore, it would be rational to defer it.