Economic Freedom Fighters v Gordhan and Others; Public Protector and Another v Gordhan and Others

The Public Protector issued two reports concerning Mr Pravin Gordhan - the Pillay Report (24 May 2019) concerning the approval of Mr Pillay's early retirement from SARS, and the SARS Report (5 July 2019) concerning alleged infractions of the Executive Ethics Code and the establishment of an intelligence unit at SARS. Both reports contained remedial action directing the President to take disciplinary action against Mr Gordhan within 30 days. Mr Gordhan instituted review proceedings in the High Court challenging the legality of the reports and sought interim interdicts suspending the remedial action pending the final review. The President indicated he would defer disciplinary action until the review was finalized. The High Court granted the interim interdict and suspended the remedial action, and ordered costs against the Public Protector, Ms Mkhwebane personally, and the EFF. The EFF and the Public Protector sought leave to appeal directly to the Constitutional Court.

• Whether the Constitutional Court's jurisdiction is engaged by the applications for leave to appeal
• Whether it is in the interests of justice to grant leave to appeal against an interim interdict
• What is the appropriate test for granting interim interdicts against the Public Protector's remedial action
• Whether the EFF's proposed stricter 'extraordinary circumstances' test should apply to interim interdicts against the Public Protector
• Whether the interim interdict impermissibly interferes with the Public Protector's constitutional powers and functions
• Whether the High Court correctly applied the OUTA test for interim interdicts
• The appealability of interim interdicts
• Whether the Biowatch principle applies to costs in this matter
• Whether a personal costs order against Ms Mkhwebane was justified

In CCT 232/19 and CCT 233/19: (a) Applications for leave to appeal against the merits dismissed; (b) Leave granted against costs orders; (c) Costs orders against the EFF and Ms Mkhwebane personally set aside and replaced with: "The Public Protector is ordered to pay Mr Pravin Jamnadas Gordhan, Mr Visvanathan Pillay and Mr George Ngakane Virgil Magashula's costs, including the costs consequent upon the employment of two counsel"; (d) Each party to pay its own costs in the Constitutional Court.

The binding legal principles established are: (1) The OUTA test for interim interdicts applies when interim relief is sought against the Public Protector's remedial action - no special stricter test is required for Chapter 9 institutions. (2) When applying the OUTA test, courts must consider the constitutional role and functions of the Public Protector and ensure the interdict does not impermissibly strip the Public Protector of constitutional powers. (3) An interim interdict suspending enforcement of remedial action does not impermissibly interfere with the Public Protector's constitutional mandate where the investigation is complete and the report has been published. (4) Interim interdicts are generally not appealable unless the interests of justice so dictate, which requires consideration of all relevant factors including prospects of success, finality, and whether the interdict has a final effect. (5) The Biowatch principle applies to constitutional litigation to protect unsuccessful litigants from paying costs to the State, and the character of the litigation (not the parties) is determinative. (6) Personal costs orders against public officials require a factual basis demonstrating bad faith or gross negligence, and courts must provide reasons for such orders. (7) The power to suspend the operation of the Public Protector's remedial action is sourced from section 172(1)(b) of the Constitution and is guided by considerations of justice and equity.

Khampepe ADCJ made several important observations: (1) The Public Protector's remedial action being "binding" does not mean interim interdicts cannot be granted - this reflects the appropriate checks and balances in a constitutional democracy. (2) The President acted correctly by deferring disciplinary action pending the review, in line with EFF I, rather than ignoring the remedial action. (3) Courts must show fidelity to the Constitution and law, not public opinion or populist rhetoric - criticism of courts as "captured and corrupt" without evidence undermines constitutional democracy. (4) While the Public Protector may be criticized, attacks in bad faith undermine her constitutional office. (5) The Public Protector's concession that she seldom opposes interim interdicts demonstrates that such interdicts do not affect her powers or accessibility. (6) Automatic suspension of court orders on appeal (under section 18 of the Superior Courts Act) does not discourage public access to courts; similarly, interim interdicts should not discourage access to the Public Protector. Jafta J observed: (1) Part A of the review application (the interim interdict) is part of constitutional litigation, contrary to the High Court's finding. (2) The OUTA standard applies only to constitutional matters involving the exercise of public power. (3) Even if there were prospects against the interdict, the suspension order was independently justified under section 172(1)(b) as just and equitable.

This case is significant for clarifying: (1) The test for interim interdicts against the Public Protector's remedial action is the OUTA test, not a stricter 'extraordinary circumstances' test; (2) The OUTA test is sufficiently flexible to accommodate the constitutional role and functions of the Public Protector; (3) Interim interdicts against the Public Protector do not impermissibly interfere with her powers where the investigation is complete and the report published; (4) The principles governing appealability of interim interdicts and the interests of justice test; (5) The Biowatch principle applies to constitutional litigation even where it involves interim interdicts; (6) Personal costs orders against public officials require a factual basis showing bad faith or gross negligence, with proper reasons provided by the court. The judgment reinforces both judicial oversight of the Public Protector's remedial action and protection of the Public Protector's constitutional mandate.