It is unfair for Public Protector Busisiwe Mkhwebane to "short-circuit" the due process argument in relation to her findings against State Enterprises Minister Pravin Gordhan – a defence that she has used herself, DA chief whip John Steenhuisen said.
Steenhuisen was addressing the media on the DA's plans to deal with what it considers a "rogue gallery" of ANC nominees for chairpersons of parliamentary committees on Monday when he was asked about Mkhwebane's recent comments that President Cyril Ramaphosa is in breach of the Constitution by not taking remedial steps against Gordhan. Gordhan is appealing her findings.
Steenhuisen said this was ironic.
"During the course of Fifth Parliament, I myself lodged a complaint against Public Protector in relation to the judgment of Justice Murphy and the findings he made against her," he said.
"One of the main thrusts of her argument – and one that was hidden behind the spineless members of the Justice committee who formed a defence squad around her – was the fact that she said: 'But I've taken this on appeal, you've got to wait until that finishes. You can't process a complaint against me while an appeal hasn't been finalised.'
"And yet, in this instance, it appears that she is trying to force the president into a position, knowing full well that minister Gordhan has appealed that particular finding of hers and there is a court process underway."
Steenhuisen said all that Mkhwebane is achieving is betraying what the real agenda, and her role in that, is.
"And she should know, that yes, Public Protector reports are binding and can only be overturned by courts of law, but if someone is involved in that process to get your report overturned, they should not be made to have the reprimand done, until the process is completed.
"Because what happens if he is exonerated? What happens if the court does overturn her report? It would not be the first. It would not be the second or the third time that her reports have been overturned. There is a very good likelihood that in this instance that may be the case. But, then how do you withdraw that sanction? And so I think it is appropriate and correct that the process unfolds."
He said if the court agrees with Mkhwebane, then Ramaphosa must discipline Gordhan.
"But I don't think it is fair for her to short-circuit the due process argument that she herself has used on so many occasions."
During the previous parliamentary term, Steenhuisen's attempts to have an inquiry into Mkhwebane's fitness to hold office were scuppered by the Portfolio Committee on Justice on two occasions. This matter will again be placed before the committee.
In May, Mkhwebane found Gordhan guilty of "improper conduct" and urged Ramaphosa to take disciplinary action against him and the South African Revenue Service (SARS) to get back a pension payout made to former SARS deputy commissioner, Ivan Pillay, Fin24 reported.
Gordhan brought a court application to have her report overturned, and Ramaphosa reappointed him to Cabinet. The EFF left the National Assembly chamber during Gordhan's speech in the debate on the State of the Nation Address last month, in protest. The EFF have also been strong supporters of Mkwhebane of late.
On Monday morning, Business Day reported that Mkhwebane has since written to Ramaphosa, indicating that his refusal to implement her remedial action was not only a failure to uphold the Constitution, but was also a foregone conclusion.
By Monday afternoon, the presidency responded with a carefully worded statement, denying that Ramaphosa failed to uphold the Constitution. Ramaphosa indicated that he would wait for the outcome of Gordhan's appeal before taking disciplinary action, if any.
"The Public Protector had directed the president to take note of the findings in the report insofar as they relate to Minister Gordhan and to take appropriate disciplinary action against the minister. No deadline was given when such 'appropriate disciplinary action' should be taken," the statement reads.