Judicial Precedent

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

Citation[2020] ZACC 10; 2020 (6) SA 325 (CC)

JurisdictionZA

Area of Law

Constitutional LawAdministrative LawSeparation of PowersRemedial Powers of the Public ProtectorInterim InterdictsCosts in Constitutional Litigation

Facts of the Case

The Public Protector issued two reports in 2019 (the Pillay Report and the SARS Report) making adverse findings against Mr Pravin Gordhan, then Minister of Public Enterprises, relating to the early retirement of Mr Ivan Pillay from SARS and the alleged establishment of an unlawful SARS intelligence unit. The reports directed the President to take disciplinary action against Mr Gordhan and to submit implementation plans for approval by the Public Protector. Mr Gordhan instituted review proceedings challenging the legality of both reports and sought interim interdicts in the High Court to suspend the implementation of the remedial action pending finalisation of the reviews. The High Court granted the interim interdicts. The Economic Freedom Fighters (EFF) and the Public Protector applied directly to the Constitutional Court for leave to appeal against the High Court’s decision, particularly challenging the test applied for interim interdicts and the costs orders made against them.

Judicial Outcome

Leave to appeal against the merits of the interim interdicts was dismissed in both applications. Leave to appeal against the costs orders was granted. The High Court’s costs orders against the EFF and the personal costs order against Ms Busisiwe Mkhwebane were set aside and replaced with an order that the Public Protector pay the costs of Mr Gordhan, Mr Pillay and Mr Magashula. Each party was ordered to pay its own costs in the Constitutional Court.

Legal Significance

This case clarified that no heightened or special test applies when courts consider interim interdicts against the Public Protector’s remedial action. It reaffirmed the applicability of the OUTA and Setlogelo tests within a constitutional framework and confirmed judicial oversight over Chapter 9 institutions through interim relief. The judgment is also significant for its guidance on costs, limiting personal and punitive costs orders against constitutional office-bearers and refining the application of the Biowatch principle.