On 29 May 2020, the Constitutional Court handed down judgment in Economic Freedom Fighters v Gordhan and Others; Public Protector and Another v Gordhan and Others ("EFF v Gordhan"). The Public Protector had issued a report directing the President to take disciplinary action against Minister Gordhan. The High Court, upon application by Minister Gordhan, ordered that the operation of the Public Protector's remedial recommendations were interdicted pending the review, by Minister Gordhan, of the impugned Public Protector's report. The High Court had also ordered that the EFF, who had intervened as respondents in the interim interdict application, the Public Protector, and Ms Mkhwebane in her personal capacity, were to pay the costs of the application.

The Constitutional Court refused leave to appeal the award of the interim interdict, on the basis that such appeal lacked prospects of success, but upheld the appeal of the High Court's costs order.

The case is significant for three reasons:

  • the court affirmed that the OUTA test applies to the Public Protector
  • the court appears to have relaxed the requirements for an appeal of a costs order
  • the court introduced a novel distinction between interdict orders and suspension orders

The OUTA test applies to the Public Protector

In National Treasury and Others v Opposition to Urban Tolling Alliance and Others, the court held that when considering an application for an interim interdict relating to the conduct of the legislature or executive, in addition to considering whether the ordinary requirements for an interdict are satisfied, a court must "keep in mind that a temporary restraint against the exercise of statutory power well ahead of the final adjudication of a claimant's case may be granted only in the clearest of cases and after a careful consideration of separation of powers harm".

In the instant matter, the EFF argued that an even stricter test should be applied when deciding to award an interim interdict suspending the operation of the Public Protector's remedial recommendations. In particular, the EFF argued that "an interdict-applicant must positively demonstrate that an interim interdict will not unreasonably undermine the Constitution's twin promises of an accessible and effective Public Protector".

The Public Protector, by contrast, conceded that the High Court had been correct in applying the OUTA test, but held that it had misapplied the test because it "did not have due regard to the constitutional status of her Office and the effect that an interdict would have on her powers and functions".

The court held that while both sets of submissions raised constitutional issues and therefore engaged the jurisdiction of the court, it was not in the interests of justice to hear the appeal because the EFF and Public Protector's arguments lacked reasonable prospects of success. This, the court explained, was because "the OUTA test is flexible enough to take into account the constitutional role of the Public Protector and it is evident that the OUTA test cautions courts not to lightly grant interim orders – especially because of the separation of powers consideration', and because the High Court ' specifically took into account whether the interim interdict would interfere with the Public Protector's constitutional powers".

The Costs Order

The High Court had ordered the EFF to pay costs on the basis that the Biowatch principle, which protects unsuccessful private litigants from the obligation of paying costs to the state in genuine constitutional litigation, did not apply in this matter. The High Court explained that this was because "the crux of the matter was whether Mr Gordhan was entitled to an interim interdict and that the mere consideration of the Public Protector's constitutional role in applying the test for interim interdict did not elevate the matter into a constitutional issue".

The High Court also ordered Ms Mkhwebane to pay costs in her personal capacity, but did not provide reasons for this decision.

The Constitutional Court held that both decisions constituted a material misapplication of the law. Contrary to the High Court's ruling, the court held that the litigation was of a constitutional nature, and that the EFF were therefore protected by the Biowatch principle. In addition, the court held that "absent reasons for granting a personal costs order against the Public Protector and disavowing the adverse allegations, there seems to be no factual basis for making a personal costs order". Accordingly, the court overturned both sets of costs orders.

Interestingly, the court appears to have held that the misapplication of the principles relating to costs by the High Court was sufficient to justify its interference with the High Court's costs order. This appears to constitute a departure from the standard adopted in Tebeila Institute of Leadership Education, Governance and Training v Limpopo College of Nursing and Another, where the court held that even where there is a material misapplication of the principles relating to costs, the court will rarely correct such a misapplication and will only do so if the interests of justice demand such an intervention.

It remains to be seen whether, in future litigation, the court will continue to treat the misapplication of the principles relating to costs as a sufficient reason to interfere with an order of costs, or whether the decision in EFF v Gordhan will be regarded as having tacitly found that the interests of justice permitted the correction of the court a quo's costs orders.

Suspension orders are distinct from interdict orders

Jafta J, in a separate judgment in which all of the justices of the court concurred, held that there were additional reasons which meant that it was not in the interests of justice to entertain the appeal of the interim interdict order. This, Jafta J explained, was because "[e]ven if it were to be said that prospects against the granting of an interdict were reasonable, the applicants would still be required to show that they had reasonable prospects against the suspension order issued by the High Court".

Jafta J explained further that the requirements for a suspension order and interdict order are distinct. A court's power to grant a suspension order is sourced in section 172(1)(b) of the Constitution and, if "it is considered just and equitable to suspend a remedial action pending a determination of the review in which the validity of the remedial action is impugned, a court may grant the suspension". In other words, justice and equity, rather than the ordinary requirements for an interdict, govern the award of a suspension order.

It therefore appears that the court has accepted that a litigant can approach a court to obtain a "suspension order", without satisfying the ordinary requirements for an interdict, provided that the considerations of justice and equity permit such an order. It will be interesting to see whether, in future litigation, litigants rely on the distinction seemingly created by the Constitutional Court between interdict and suspension orders.

Originally published 15 June, 2020.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.