Request by EFF, Mkhwebane confounds ConCourt judges

Constitutional Court justices seemed confounded by the Economic Freedom Fighters (EFF) and Public Protector Busisiwe Mkhwebane’s request yesterday that the court develop new standards for interdicting the institution’s remedial actions.

Opening arguments were heard yesterday in the bid by the EFF and Mkhwebane to appeal a High Court in Pretoria interdict pausing her remedial action against Public Enterprises Minister Pravin Gordhan.

Judges grilled Advocate Tembeka Ngcukaitobi, who represented the EFF, on why it was necessary for the court to declare that stricter conditions for an interdict to be granted should apply when it comes to the remedial action of Mkhwebane’s office.

Ngcukaitobi argued that the unique powers of the public protector’s office should warrant special consideration when ruling on actions which would stop the actions of her office from being effective, including her remedial action.

But justices pressed the lawyer on the question of what was insufficient about the standing test applied by the courts in the granting of interdicts against her office’s remedial action.

It was also put to Ngcukaitobi and Mkhwebane’s lawyer, Thabani Masuku, that Mkhwebane already admitted that she accepted the routine granting of interdicts against her remedial actions, but was challenging the one in question because of specific risks she claimed it posed to her office.

Masuku was also arguing that the High Court in Pretoria failed to consider section 181 of the constitution, which compelled state office bearers to “protect and assist” the office of the public protector.

Political analyst Ralph Mathekga said the request for a stricter test was flawed logic.

“What test would that be? Consider that when it comes to remedial action, if the core fundamental findings or the grounds upon which findings have been made are shaky, as it is alleged by Gordhan regarding [Mhwebane’s] report, then one cannot say there is a higher obligation to implement those remedial actions,” said Mathekga.

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