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:

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. 

By Ms Christine Botha: Manager, Centre for Constitutional Rights
8 August 2019