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Constitutional Court judges on Thursday reserved judgement in two applications for direct leave to appeal in the latest round of the so-called SARS "rogue unit" report case, which pitted the Economic Freedom Fighters and Public Protector Busisiwe Mkhwebane against Minister of Public Enterprises Pravin Gordhan.
During proceedings, judges sought to understand how an order suspending the implementation of remedial action against Gordhan, as recommended by the Public Protector in her report, would affect the functioning of her office.
An interim order was granted in July for President Cyril Ramaphosa to halt action against Gordhan in connection with the establishment of the 'rogue unit' at the South African Revenue Service in 2007. Gordhan was the SARS commissioner at the time.
The EFF and Mkhwebane in August applied for leave to appeal the July High Court ruling.
But the following month, on September 3, the Public Protector attempted to withdraw her application for leave to appeal directly to the apex court, saying that she wished to lodge an appeal before the Supreme Court of Appeal. The EFF did not withdraw its application.
Acting Deputy Chief Justice Sisi Khampepe was one of a number of judges who wanted Advocate Tembeka Ngcukaitobi, who is representing the EFF, to explain how the order granted in July by the High Court in Pretoria would impact the office of the Public Protector as argued by the party.
Institutional harm
"What irreparable harm has been caused to the Public Protector by the granting of this order?" asked Khampepe.
Ngcukaitobi said the order did not help advance the protection of ordinary people, who only have the services of the Public Protector for recourse.
He pointed at the prospect of "institutional harm" which may be suffered by the office of the Public Protector, adding that its status may be "diminished" as a result of such an order.
He further argued that the ruling could cause ordinary people to lose faith in the institution if there is a possibility that remedial action may not be implemented.
'Paper typer'
"That reduces the Public Protector to a 'paper typer’," he said.
According to Ngcukaitobi, the order would potentially give rise to a culture of impunity among those accused of wrongdoing, knowing that remedial actions against them could be be halted in the form of a court order.
In her wide-ranging report, Mkhwebane stated that the establishment of the 'rogue unit' - also known as the High Risk Investigations Unit - was illegal and that it conducted unlawful intelligence.
Mkhwebane's report recommended that Ramaphosa discipline Gordhan, while also ordering that Speaker of the National Assembly Thandi Modise refer Gordhan to the Joint Committee on Ethics on Members Interests, and that he be investigated by the minister of state security and the SARS Commissioner.
In his founding affidavit, Gordhan told the court the investigating unit was lawfully set up and there is nothing rogue about its establishment.
On the other hand, the legal representative for the office of the Public Protector, Thabani Masuku, attempted to convince the judges that the High Court erred in issuing the interim order.
He said by granting the order, "the court did not take into account the impact it would have on the independence of the office of the Public Protector and failed to consider the balance of fairness".
He appealed with the court to help restore the dignity of the Public Protector and save Mkhwebane from "what could be a journey for her removal".
