The Public Protector’s office said that Advocate Busisiwe Mkhwebane’s legal blows should not be seen as incompetence because her predecessor had already warned that the Constitutional Court’s ruling confirming the office’s remedial action as binding, unless set aside by the courts, would present challenges.
Mkhwebane lost her battle to President Cyril Ramaphosa on Thursday when the High Court in Pretoria ruled that the president has complied with her remedial action in relation to the report on former South African Revenue Service (Sars) deputy commissioner Ivan Pillay’s early retirement.
The Public Protector’s office said that Mkhwebane was disappointed with the outcome of the matter and would decide on the way forward when she received the full judgment.
Public Protector Busisiwe Mkhwebane thought she had a watertight case.
Her spokesperson Oupa Segalwe: “Especially because of the strong arguments counsel advised on her behalf, where the president, on the one hand, wanted it to be declared that he complied with the remedial action and by the same token, he then says that the court must suspend the implementation of the remedial action.”
Segalwe said these court challenges were foreseen by Advocate Thuli Madonsela after the highest court in the land confirmed that the Public Protector’s remedial action was binding unless set aside by a court of law.
“If you look at the last annual report that Advocate Madonsela put out, that judgment by the Constitutional Court was both a gift and a curse – a gift in the sense it clarified the Public Protector’s powers but a curse because we get bogged down in all these things.”
Segalwe said that the losses were simply clarification of the law, like appeals that overturn lower court rulings.