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IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA In the matter between: THE PUBLIC PROTECTOR and PRAVIN JAMNADAS GORDHAN ‘THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA THE SPEAKER OF THE NATIONAL ASSEMBLY ‘THE MINISTER OF STATE SECURITY THE NATIONAL DIRECTOR OF PUBLIC PROSECUTION THE NATIONAL COMMISSIONER OF POLICE \VISVANATHAN PILLAY (GEORGE NGAKANE VIRGIL MAGASHULA ECONOMIC FREEDOM FIGHTERS CASE NO: CCT 233/19 15' APPLICANT ‘2ND APPLICANT 15" RESPONDENT 2ND RESPONDENT ‘3 RESPONDENT (4™ RESPONDENT ‘57 RESPONDENT 6THRESPONDENT THRESPONDENT ‘8™ RESPONDENT 9™ RESPONDENT DOCUMENT: SECOND RESPONDENT'S OPPOSING AFFIDAVIT FILED BY: SECOND RESPONDENT'S ATTORNEYS STATE ATTORNEY PRETORIA 316 SALU BUILDING CNR FRANCIS BAARD & THABO SEHUME STR ENTRANCE AT THABO SEHUME PRIVATE BAG X91 PRETORIA, 0001 Ref: 4088/2019/264/Ib Tek (012) 309-1623 Fax: (012) 309-1649/50 DIRECT: 086 507 1910 CELL: 071 870.2442 EMAIL: Dx: 298 PRETORIA Eng: MR. R J (JOSEPH) SEBELEMETSA C/O STATE ATTORNEY - JOHANNESBURG PRIVATE BAG X9 JOHANNESBURG 2001 Tel: 011 330.7600 Fax: 086 587 1152 Email: V1 Ref: Mr Vijay Dhulam BRAAMFONTEIN SEANEGO ATTORNEYS INC FIRST & SECOND APPLICANTS’ ATTORNEYS ‘C/O SV MAHLANGU ATTORNEYS 507 SPUY STREET SUNNYSIDE PRETORIA, 0001 TEL: 011 466 0442 FAX: 011 466 0464 EMAIL: info@seanego.co.za / theo@seanego.coza REF: THS/PUB1/0017 MMALATJI& KANYANE INC FIRST RESPONDENT'S ATTORNEYS SUITE 39, 5™ FLOOR KATHERINE & WEST BUILDING 114 WEST STREET SANDTON. TEL: 011 072 2601 FAX: 087 220 1075 EMAIL: tmalatii@meinc.africa / bmasis@meinc.atica REF: T MALATJI/MO0022 C/O LEKHU PILSON ATTORNEYS 1122 JUSTICE MAHOMED STREET BROOKLYN PRETORIA REF: J LEKHU WERKSMAN ATTORNEYS, SEVENTH RESPONDENT'S ATTORNEYS. THE CENTRAL 96 RIVONIA ROAD SANDTON EMAIL: bhotz@werksmans.com / I C/O BRAZINGTON & MCCONNELL A2A HILDA STREET 2N0 FLOOR, HATFIELD PLAZA, NORTH TOWER HATFIELD PRETORIA SAVAGE JOOSTE & ADAMS ATTORNEYS EIGHT RESPONDENT'S ATTORNEYS KINGS GATE 5, 10™ STREET MENLO PARK PRETORIA EMAIL: Insurancelit@savage.co.za REF: PFV/mag001 IAN LEVITT ATTORNEYS & CONVEYANCERS NINTH RESPONDENT'S ATTORNEYS: SANDTON REF: A Charalambous EMAIL: angelike@ianlevitt.co.za C/O FRIEDLAND HART SOLOMON & NICOLSON INC BLOCK 4, 3®° OFFICE 79 STEENBOK AVENUE MONUMENT PARK PRETORIA IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA In the matter between: THE PUBLIC PROTECTOR BUSISIWE MKHWEBANE and PRAVIN JAMNADAS GORDHAN THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA THE SPEAKER OF THE NATIONAL ASSEMBLY THE MINISTER OF STATE SECURITY THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS THE NATIONAL COMMISSIONER OF POLICE VISVANATHAN PILLAY GEORGE NGAKANE VIRGIL MAGASHULA ECONOMIC FREEDOM FIGHTERS GP Case no: 48521/19 CC Case No: 12019 First Applicant ‘Second Applicant First Respondent Second Respondent Third Respondent Fourth Respondent Fifth Respondent Sixth Respondent Seventh Respondent Eighth Respondent Ninth Respondent SECOND RESPONDENT'S OPPOSING AFFIDAVIT |, the undersigned, MATAMELA CYRIL RAMAPHOSA ‘state under oath that: 4. lam an aduit male and the President of the Republic of South Africa, duly elected in terms of section 86 of the Constitution of the Republic of South Africa, 1996 (the “Constitution”). | assumed office on 25 May 2019 in accordance with section 87 of ‘the Constitution. |-am the Second Respondent in this application for leave to appeal. 2. I depose to this affidavit in my capacity as the Head of State and the Head of the National Executive. 3. The facts deposed to herein are, to the best of my belief, true and correct, and save where it appears otherwise, within my personal knowledge. 4, Where | make submissions of a legal nature, | do so-on the advice of my legal representatives. 5. lam aware that the applicant seeks to withdraw this application for leave to appeal directly to this Court, | resist her attempt to withdraw this application for leave appeal and ask that this Court holds a full hearing on the application for leave to appeal. My reasons for doing so relate to issues that do not ordinarily arise in applications for leave to appeal to this Court. They are canvassed in full in my affidavit in response to the application of the ninth respondent (“the EFF") for leave to appeal to this Court from the same decision of the High Court. 6. | attach a copy of my answering affidavit in the application for leave to appeal of the EFF as Annexure “X" and reconfirm the correctness of its contents. | ask that it be incorporated into the present affidavit. 7. I refer to my affidavit in the EFF application for leave to appeal and respectfully submit that: TA. 7.2. 7.3. TA. 75. 78. The proposed appeal of the Public Protector has no reasonable prospects of success; However, the proposed appeal raises important issues of a constitutional nature concerning institutions central to our constitutional democracy: the Executive, the Public Protector and the Courts; In the context of the three High Court disputes involving my office and the Public Protector and decided in the last six weeks, those issues have given tise to 4 heated and at times vituperative public debate that is potentially damaging to the Executive, the Public Protector and the Courts; The participants in the vituperative public debate seek to base their positions in arguments about the power of the High Court to grant interim relief staying implementation of remedial action directed by the Public Protector against an executive organ of state while that executive organ of state is challenging the legality of the remedial action and the Public Protector’s report in which it is embodied. The dispute over this power of the High Court is the central constitutional issue in the present matter. It is accordingly in the clear public interest for this Court to assist to end the vituperative public debate by exercising its- authority over the present application for leave to appeal. The attitude of the Public Protector should not affect the outcome of this application for leave to appeal. This is a matter that implicates the national interest. It is not a matter where the interests or strategic choices of an individual litigant should be decisive. 3 yc: 8, laccordingly ask that this Court does not accept the Public Protector’s withdrawal of her application for leave to appeal, but rather holds a full hearing on that application. |ATAME! iL 0: | certify that the above affidavit was signed and swom to before me at this 2 day of SEPTEMBER 2019 by the deponent after he declared that the knows and understands the contents of this affidavit, that the deponent has no objection to taking the prescribed oath which the deponent has taken in respect thereof is binding on the deponent's conscience, and that the contents of this affidavit are true and correct. COMI R OF OATHS: a Annexure A” IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA In the matter between: ECONOMIC FREEDOM FIGHTERS: And PRAVIN JAMNADAS GORDHAN ‘THE PUBLIC PROTECTOR BUSISIWE MKHWEBANE THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA THE SPEAKER OF THE NATIONAL ASSEMBLY ‘THE MINISTER OF STATE SECURITY THE NATIONAL DIRECTOR OF PUBLIC PROSECUTION THE NATIONAL COMMISSIONER OF POLICE VISVANATHAN PILLAY ‘GEORGE NGAKANE VIRGIL MAGASHULA CASE NO: CCT 233/19 APPLICANT ‘15'RESPONDENT ‘2NO RESPONDENT 3? RESPONDENT 44 RESPONDENT ‘5T RESPONDENT 6™ RESPONDENT 7™ RESPONDENT 8™ RESPONDENT 9™ RESPONDENT 10™ RESPONDENT | FILING NOTICE (EFF'S APPLICATION) DOCUMENT: FOURTH RESPONDENT'S OPPOSING AFFIDAVIT FILEDBY: FOURTH RESPONDENT'S ATTORNEYS. STATE ATTORNEY PRETORIA 316 SALU BUILDING CNR FRANCIS BAARD & THABO SEHUME STR ENTRANCE AT THABO SEHUME PRIVATE BAG X91 PRETORIA, 0001 Ref; 4088/2019/264/Ib Tek: (012) 309-1623 Foxx (012) 309-1649/50 DIRECT: 086 507 1910 CELL: 071 870 2442 EMAIL: sebelemetsa@justice.gov.za Dx 298 PRETORIA Enq: MR. R J (JOSEPH) SEBELEMETSA ‘C/O STATE ATTORNEY - JOHANNESBURG PRIVATE BAG X 9 JOHANNESBURG 2001 Tel: 011 330 7600 Fax: 086 587 1152 Email: Ref: Mr Vijay Dhulam TO: ‘THE REGISTRAR OF THE CONSTITUTION COURT BRAAMFONTEIN AND TO: JAN LEVITT ATTORNEYS & CONVEYANCERS APPLICANT'S ATTORNEYS SANDTON AND To: REF: A Charalambous EMAIL: angelike@ianlevitt.coza C/O FRIEDLAND HART SOLOMON & NICOLSON INC BLOCK 4, 3*° OFFICE 79 STEENBOK AVENUE MONUMENT PARK PRETORIA MMALATI. KANYANE INC FIRST RESPONDENT'S ATTORNEYS. SUITE 39, 5TH FLOOR KATHERINE & WEST BUILDING 114 WEST STREET SANDTON TEL: 011 072.2601 FAX: 087 220 1075 EMAIL: tmalatii@mcinc.africa / bmasia@mcinc.africa REF: T MALATJI/M00022 C/O LEXHU PILSORt ATTORNEYS 1122 JUSTICE MAHOMED STREET BROOKLYN. PRETORIA REF: J LEXHU SEANEGO ATTORNEYS INC SECOND & THIRD RESPONDENTS ATTORNEYS BLOCK B, SUITE C FIRST FLLOR 53 KYALAMI BOULEVARD KYALAMI BUSINESS PARK MIDRAND TEL: 011 466 0442 EMAIL: info@seaneao.co.za / theo@seanego.co.za REF: TNS/PUB1/0017 (C/O SV MAAHLANGU ATTORNEYS 507 SPUY STREET SUNNYSIDE PRETORIA, 0001 ‘WERKSMAN ATTORNEYS: NINTH RESPONDENT'S ATTORNEYS THE CENTRAL, 117 FLOOR 96 RIVONIA ROAD. SANDTON, 2196 TEL: 011 535 8106 EMAIL: bhotz@werksmans.com / igobetz@werksmans.com C/O BRAZINGTON & MCCONNELL 424 HILDA STREET ‘28 FLOOR, HATFIELD PLAZA, NORTH TOWER HATFIELD PRETORIA SAVAGE JOOSTE & ADAMS ATTORNEYS TENTH 22SPONDENT'S ATTORNEYS KINGS GATE 5, 10™ STREET MENLO PARK PRETORIA EMAIL Insurancelt@savage.co,7z0 REF: PFV/mag001 Annexure x" IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA In the matter between: ECONOMIC FREEDOM FIGHTERS and PRAVIN JAMNADAS GORDHAN THE PUBLIC PROTECTOR BUSISIWE MKHWEBANE THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA THE SPEAKER OF THE NATIONAL ASSEMBLY THE MINISTER OF STATE SECURITY THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS THE NATIONAL COMMISSIONER OF POLICE VISVANATHAN PILLAY GEORGE NGAKANE VIRGIL MAGASHULA GP Case no: 48521/19 CC Case No: 12019 First Applicant First Respondent Second Respondent Third Respondent Fourth Respondent Fifth Respondent Sixth Respondent Seventh Respondent Eighth Respondent Ninth Respondent Tenth Respondent SECOND RESPONDENT'S OPPOSING AFFIDAVIT |, the undersigned, MATAMELA CYRIL RAMAPHOSA. state under oath that: An 4. lam an adult male and the President of the Republic of South Africa, duly elected in terms of section 86 of the Constitution of the Republic of South Africa, 1996 (the “Constitution’). | assumed office on 25 May 2019 in accordance with section 87 of ‘the Constitution. | am the Fourth Respondent in this application for leave to appeal. 2. I depose to this affidavit in my capacity as the Head of State and the Head of the National Executive. 3. The facts deposed to herein are, to the best of my belief, true and correct, and save where it appears otherwise, within my personal knowledge. 4. Where | make submissions of a legal nature, | do so on the advice of my legal representatives. INTRODUCTION 5. | respectfully ask that this Court convenes a full oral hearing in this application brought by the Economic Freedom Fighters (‘the EFF”) for leave to appeal directly to this Court. | make this request for reasons that do not ordinarily arise in applications for leave to appeal to this Court. 6. | respectfully submit that the proposed appeal of the EFF (‘the proposed appeal”) has no reasonable prospects of success. Nevertheless, the proposed appeal raises important issues of a constitutional nature conceming institutions central to our constitutional democracy: the Executive, the Public Protector and the Courts. 7. Following the decision of the High Court a public controversy has raged with potentially damaging consequences for the office of the Public Protector and for the High Court. In all the circumstances, | respectfully submit that it is in tye national we interest for this Court now to pronounce finally on the issues raised in the proposed appeal so that clarity is provided on the respective constitutional responsibilities of the Executive, the Public Protector and the High Court in matters of this nature. 8. In this regard, | respectfully submit that while the exclusive jurisdiction of this Court under section 167(4) is not invoked by the present matter, the concems which underlay the decision of the Constitutional Assembly to vest this Court with ‘exclusive jurisdiction over disputes of the sort identified in section 167(4) apply, with at least equal force, to the dispute in the present matter. 9. | have structured this affidavit as follows: 9.1. | briefly describe the facts giving rise to the dispute in the High Court and | ‘set out my position in that dispute. 9.2. | then address the special circumstances that militate against the dismissal of this application for leave to appeal in this matter on paper even though I ‘submit that the proposed appeal has no reasonable prospects of success. THE DISPUTE IN THIS MATTER 10.In the High Court the first respondent (“Minister Gordhan") sought an order suspending the remedial action contained in paragraph 8 of the report issued by the Public Protector on 5 July 2019 under number 36 of 2019/20 (‘the report”). 11. The report was relevant to my powers and duties in the following respects: 11.4. The report required at paragraph 8.1.1. that the President “take note of the findings in this report in so far as they related to the erstwhile Minister of Finance, Mr Gordhan and to take appropriate disciplinary action against him yee for his violation of the Constitution and the Executive Ethics Code within 30 days of issuing of this report.” 11.2. Itfurther required at paragraph 9.1 that the President “must, within thirty (30) days from the date of the issuing of this Report and for approval of the Public Protector, submit an Implementation Plan to the Public Protector indicating how the remedial action referred to in paragraph 7.1 of this Report will be implemented.” It now is clear that the reference to “paragraph 7.1” in paragraph 9.1 was an error and was intended to be a reference to paragraph 8.1.1. of the report. 12. There was a tension between the two paragraphs of the report relevant to me. On the one hand I was directed to submit within 30 days for the approval of the Public Protector, a plan detailing disciplinary action that | would be taking against Minister Gordhan. On the other hand, the Public Protector demanded that the disciplinary action be taken within the same 30 day period. It seems that the Public Protector required that the remedial action in paragraph 8.1.1 of the report be implemented by 19 August 2019. 13. In Part B of his application in the High Court (‘the Part B review’), Minister Gordhan challenges the legal validity of the Public Protector’s investigations and findings and the remedial action she directed in her report. Moreover, Minister Gordhan takes issue with the tacit assumption of the Public Protector that | have legal Powers ‘to take appropriate disciplinary action” against him when he is not. appointed to the Cabinet as an employee who is subject to disciplinary action but rather as a Minister who serves subject to my pleasure. ye 14. It Is clear to me that Minister Gordhan’s Part B review is neither frivolous nor vexatious. However, | have refrained from expressing any view on whether or not ‘the Part B review will succeed. That is an issue for the Courts to decide, and not for me to anticipate. I have deliberately not involved myself in the disputes between Minister Gordhan and the Public Protector in this regard. In my view, it would be inappropriate for me to do so. 15.1n Part A of his application in the Court below, Minister Gordhan sought interim relief in the form of orders staying implementation of the remedial action in the report and interdicting the Public Protector from enforcing these orders pending determination of the Part B review. 16.1 supported the interim relief sought by Minister Gordhan and continue to do so for the following reasons: 16.1. Any ‘appropriate disciplinary action” | might take against Minister Gordhan would necessarily have to be informed by whether the investigation and findings of the Public Protector are legally valid and whether I have “disciplinary” powers over members of the Cabinet. 16.2. These are issues to be determined by the Courts in Part B review. 16.3. There is no harm to the Public Protector if ! defer acting on her remedial action until after the Courts have pronounced on the validity of that remedial action. 16.4. In the circumstances, | respectfully submit that it would be premature for me to attempt to take “appropriate disciplinary action” against Minister Gordhan while the Part B review application is still pending and the disputeyover the 5 ve validity of the investigation into, and findings against, Minister Gordhan and the extent, if any, of my “disciplinary” powers over him remain unresolved. 16.5. The constitutional principles underlying the Outa case support the grant of interim relief. In terms of those underlying principles, neither the Courts nor the Public Protector should ordinarily trespass on the exclusive domain of Executive, by second guessing my choice not to take any “appropriate disciplinary action” against Minister Gordhan before the Part B review application has been finalised and the dispute over the legality of the Public Protector’s remedial action has been determined by the Courts, which are ‘the branch of goverment responsible for determining that dispute. 17.1n view of these considerations, | respectfully submit that the order of interim relief granted by the High Court was correct and that, irrespective of any quibbles that the Public Protector or the EFF may have with particular aspects of the reasoning in the High Court judgment, there is no reasonable prospect of the High Court order of interim relief being overtumed by this Court. THE EXTRAORDINARY CIRCUMSTANCES OF THE PRESENT CASE 18. The High Court application was one of three different urgent applications decided in two weeks in late July / August 2019 in which applications sought to interdict implementation of remedial action directed by the Public Protector pending applications for the review and setting aside of the reports in which she directed the relevant remedial action. 1.1n addition to the present matter, | was also a party in the two other applications where urgent interim relief was granted against the Public Protector. | 6 wie 20. Litigation of this nature creates a risk that it will trigger public controversies that impair the dignity of the Public Protector, the executive organs of state involved in the dispute and even the High Court itself. Regrettably, that risk materialised in the context of the three urgent applications in July / August to interdict implementation of remedial action directed by the Public Protector. 21. The public response to the hearing of these applications and the judgments handed down therein has been heated. Supporters of the different disputing parties have fiercely criticised their perceived opponents. Some of this public criticism has been considered, but in many cases reckless allegations have been exchanged in the public debate. The Public Protector, the Presidency, Minister Gordhan and Judge Potterill who decided the present matter, have all been subjected to public attacks that cannot be justified. A fake twitter account in the name of Judge Potterill was even created in an apparent attempt to discredit her judgment. 22.1 respectfully submit that in circumstances like these, there is a pressing national need for this Court to exercise its authority over the central constitutional dispute in this case, namely the power of the High Court to grant interim relief staying implementation of remedial action directed by the Public Protector against an executive organ of state while that executive organ of state is challenging the legality of the remedial action and the Public Protector’s report in which it is embodied. 23.A judgment of this Court will end any constitutional law controversy that either bases the public disputants’ positions or serves as cover for those positions. In this way, it will assist speedily to put an end to a vituperative public dispute that is harmful to our constitutional democracy. 24.For these reasons, | respectfully submit that the absence of reasonable prospects of success of the proposed appeal should not result in this Court's dismissal of the EFF leave to appeal én the papers. | accordingly ask that a full hearing be held on the EFF application for leave to appeal to this Court, notwithstanding the fact that the EFF’s proposed appeal has no reasonable prospects of success. 25.In requesting a full hearing on the EFF's application for leave to appeal, | am mindful of the fact that the Public Protector has now withdrawn her application for leave to appeal to this Court. | do not know why the Public Protector withdrew her application for leave to appeal. Her office has been publicly reported as tweeting that this is part of a broader litigation strategy in relation to the case. In this regard | attach as Annexure “A” an article published on the Independent Online on 30 August 2019. Whether or not the contents of this and similar reports are accurate, | respectfully submit that the attitude of the Public Protector should not affect the outcome of this application for leave to appeal. This is a matter that implicates the national interest. It is not a matter where the interests or strategic choices of an individual litigant should be decisive. | certify that the above affidavit was signed and swom to before me at this 2" day of SEPTEMBER 2019 by the deponent after he declared that the knows and understands the contents of this affidavit, that the deponent has no objection to taking the prescribed oath which the deponent has taken in respect thereof is binding on the onent’s conscience, and that the contents of this affidavit are true and correct. 2019 -09- 02 : primera "fy * 22019 \Mitrwabene's appeal had poor prospects of success, says Gordhan’s lawyer | IOL News #| 10L Mkhwebane’s appeal had poor prospects of success, says Gordhan's lawyer POLITICS / 20 AUGUST 2019, 6:55AM / BALDWIN NDABA Public Protector advocate Buisiwe Midhwebane’s office has confirmed she ha withdrawn her appeal filed two weeks ago uke aper courtin ch ae sought chalenge te dekion ojudge Slt Pot Picture: Bongant Shilubane/Aican News Agency Johannesburg - Public Enterprises Minister Pravin Gordhan is adamant that Public Protector advocate Busisive Mkhwebane withdrew her appeal against the North Gauteng High Court ruling in the Constitutional Court because it was bound to fail. This was the reaction of Gordhan's lawyer, Tebogo Malatj, following the confirmation by Mkwebane’s office that she had withdrawn her appeal filed two weeks ago at the apex court in which she sought to challenge the decision of Judge Sulet Potterill to interdict the implementation of remedial action against Gordhan. Mkhwebane wanted President Cyril Ramaphosa, the National Prosecuting Authority and the police to act against Gordhan for allegedly operating a “rogue unit” during his tenure as SA Revenue Service commissioner in 2007. ‘Contacted for comment on Thursday, Mkhwebane’s spokesperson, Oupa Segalwe, said: “We can only confirm that there has been a withdrawal but can’t say anything further.” On its Twitter account, the public protector's office sald: “@AdvMkhwebane has indeed withdrawn the application after taking advice on the matter. She is not at liberty to share the details thereof. This is part of our broader litigation strategy cancerning this case.” RELATED ARTICLES c NV, 1828000 22019 \Migwebene's appeal had poor prospects of success, says Gordhen's lawyer | IOL News Knives still out for Busisiwe Mkhwebane — However, a notice of withdrawal, states: “ the first and second applicants (Public Protector and Busisiwe Mkhwebane, respectively) hereby withdraw their application for leave to appeal directly this Honourable Court against the whole of the order and judgment granted by Her Ladyship, Potterill J, of the Gauteng division of the High Court on 29 July 2019...” Reacting, Malatji said: “We did not expect the withdrawal. We can only speculate about the reasons for the withdrawal but would want to believe it is based on legal counsel that the application has poor prospects of success.” Last month Mkhwebane made scathing findings against Gordhan in her report, saying the minister had misled Parliament about meeting one of the Guptas. The public protector also found that Gordhan played an instrumental role in the formation of a “rogue unit” which was allegedly used to monitor the day-to-day lives of several people in the country. In her remedial action, she asked prosecutions head advocate Shamila Batohi and the police to institute prosecutorial and criminal investigations against those who were allegedly involved with the “rogue unit". Gordhan has since taken her findings on judicial review. Political Bureau Related Tags Crime and Courts