The Presidency confirmed on Wednesday night that president Cyril Ramaphosa had filed a supporting affidavit in the North Gauteng High Court in relation to Public Enterprises Minister Pravin Gordhan’s court application for the suspension of the enforcement of remedial action recommended by the public protector.
Ramaphosa’s spokesperson, Khusela Diko, said via an emailed statement that the legal action arose from an investigation by the public protector into “a matter involving the establishment of an investigative unit of the South African Revenue Services (SARS)”, widely cited in the media as the “rogue unit”.
Gordhan has asked the North Gauteng High Court to suspend the enforcement of the recommended remedial action, pending a review of the public protector’s investigation and report into the matter.
Diko said Ramaphosa indicated in the affidavit “his support for minister Gordhan’s suspension application in as far as the relief sought by the minister relates to the president”.
Ramaphosa also noted in his submission that Gordhan urged the same court to interdict the public protector from enforcing the remedial action in question.
Gordhan has contended that the recommended action should be suspended pending determination of the court’s review of the public protector’s report on the matter.
According to Diko, Ramaphosa said in his submission that it was clear from Gordhan’s review application that there was a bona fide justiciable dispute between Gordhan and the public protector over the legal validity of the public protector’s investigations and findings, and the remedial action she had directed in her report.
Moreover, said Diko, Gordhan had also taken issue with the public protector’s “tacit assumption” that the president had legal powers “to take appropriate disciplinary action” against the minister.
“[Gordhan] is not appointed to the cabinet as an employee who is subject to disciplinary action but rather as a minister who serves at the pleasure of the president,” said Diko.
“The president argues that any ‘appropriate disciplinary action’ he may take against the minister would need to be informed by whether the investigation and findings of the public protector are legally valid and whether the president has what, if any, ‘disciplinary’ powers over members of the cabinet,” said Diko.
She said that all of these issues were to be determined by the court in Gordhan’s review application.
Given the circumstances, Diko said Ramaphosa believed it would be “premature” for him to try to take “appropriate disciplinary action” against Gordhan while the principal review application was still pending “and the disputes over the validity of the investigation into, and findings against, minister Gordhan and the extent, if any, of the president’s ‘disciplinary’ powers over the minister remain unresolved”.
“The president therefore supports minister Gordhan’s application that remedial action be suspended pending the principal review,” said Diko.