Public protector stumped again as court denies leave to appeal Ivan Pillay early retirement judgment

The North Gauteng high court has dismissed Busisiwe Mkhwebane's application to appeal a judgment overturning her report on Pravin Gordhan’s decision to grant Ivan Pillay early retirement, ruling that it had no prospects of success.

Mkhwebane had applied to appeal the 17 December 2020 judgment that found her report was irrational and that she did not have a full grasp of the law.

Mkhwebane’s report, released the day before President Cyril Ramaphosa’s May 2019 inauguration, found Gordhan had irregularly approved Pillay’s early retirement from SARS with full benefits.

She recommended Ramaphosa take appropriate disciplinary action against Gordhan for failing to uphold the Constitution.

While the court ruling in December comprehensively dismissed Mkhwebane’s reasoning for finding against Gordhan and her suggested remedial action, the judgment wasn’t all in Gordhan's favour.

The public enterprises minister had accused Mkhwebane of waging a political campaign against opponents of state capture and claimed she was not fit to hold office.

The court ruling said Gordhan had no evidence to prove Mkhwebane acted with ulterior motives and called his claims “just suspicions and mere speculation”. It said issues of the public protector’s fitness to hold office should be raised in Parliament rather than court.

Subsequently, in March 2021, the National Assembly voted to establish a special committee to inquire into the public protector’s competence to hold office.

In its December ruling, the North Gauteng high court noted that multiple applications and counter applications were launched in the court proceedings by Gordhan and Pillay on the one side and Mkhwebane on the other.

The court then ordered the public protector to pay Gordhan and Pillay’s costs regarding the review application while ordering the pair to pay her costs regarding her application to strike out certain accusatory remarks.

After the December judgment, Mkhwebane applied for leave to appeal the majority of the ruling that overturned her report. Gordhan and Pillay launched a cross-appeal application regarding a ruling against one specific argument they had proposed.

Gordhan and Pillay had challenged Mkhwebane’s report on both its legality, on the grounds of irrationality, and, alternatively, on the grounds of the Promotion of Administrative Justice Act (PAJA).

The court deemed the PAJA argument “legally irrelevant” and ordered Gordhan and Pillay to pay costs on the matter, which they then applied to appeal. 

On Wednesday this week, the court dismissed that appeal application along with Mkhwebane’s application to overturn the whole judgment.

“We are therefore of the view that there are no reasonable prospects of success of the appeal,” ruled Judges Elizabeth Kubushi, Mpostoli Twala and Norman Davis on Wednesday.

“Put differently, we hold the view that there is no prospect that another court may come to a different conclusion in this case. Therefore the applications for leave to appeal and cross-appeal the judgment fall to be dismissed.”

The court ruled that both applications to appeal were dismissed with costs.

The decision to dismiss Mkhwebane’s appeal application means the December 2020 judgment, ruling Gordhan’s approval of Pillay’s early retirement lawful, stands.

Mkhwebane still has the option of attempting to appeal directly to the Supreme Court of Appeal to overturn the judgment and reinstate her report.

The public protector has faced a string of adverse court judgments, particularly in relation to Gordhan. Weeks before courts overturned her report on Pillay’s early retirement, another ruling said her report on the so-called SARS “rogue unit” was “without foundation, particularly as this conclusion is based on discredited reports and unsubstantiated facts”. DM