The court also dismissed a separate application by the Economic Freedom Fighters in the same vein.

The Constitutional Court said the central matter before it was whether the North Gauteng High Court had applied the proper test for interim orders when it granted the urgent interdict to Gordhan in July last year. 

The interdict halted implementation of Mkhwebane's directive that he be sanctioned by President Cyril Ramaphosa, pending the final court ruling in Gordhan's legal review of her findings. These included that Gordhan be sanctioned by the president for his role in the establishment of the so-called "rogue" intelligence unit within the South African Revenue Service, and that there be consideration of whether criminal charges should flow from the matter.

Mkhwebane had argued that the high court had failed to consider the constitutional importance of her office and the impact the order may have on her ability to carry out her constitutional obligations. The Economic Freedom Fighters had argued that a stricter test was needed in law when weighing applications for interim interdict against the office of the Public Protector. 

But the court found, in its main judgment on Friday, that it is entrenched in legal precedent that interim orders may only be granted in exceptional circumstances and that there was no compelling reason to create a special test in the case of the Public Protector.

It held that the interdict granted by the high court met the test for interim orders, and that it does not interfere with the duties of her office in any way, saying that once a report by the Public Protector is published, her works has been done and her effectiveness would therefore not be hindered. 

"I am also not persuaded that the high court misdirected itself on the facts. I am of the opinion that it struck a fair balance between the rights and interests of all the parties concerned. It identified the correct test, applied this test to the facts, and then arrived at a conclusion at which any reasonable court would have arrived," Judge Sisi Khampepe wrote in the judgment. 

"There is no foreseeable irreparable harm that the Public Protector would suffer. The interim interdict would not thwart her constitutional mandate and it would not offend any of her powers and functions as set out in the Constitution."

The judgment stressed that direct appeals to the Constitutional Court were only allowed in exceptional circumstances, which were not present in this instance. 

"Accordingly leave to appeal against the merits in both applications was not granted."

But the Constitutional Court overruled the high court on the personal costs order it awarded against Mkhwebane when granting the interdict.

It held that personal costs orders are punitive and that "the high court failed to justify an order of this nature".

The court ruled instead that the cost of Gordhan's legal counsel should be paid by the office of the Public Protector.

African News Agency (ANA)