The Constitutional Court has dismissed a leave to appeal application which the Economic Freedom Fighters (EFF) and Public Protector Busisiwe Mkhwebane lodged in a case involving Public Enterprises Minister Pravin Gordhan and the so-called SARS "rogue unit" report.

The EFF and Mkhwebane approached the apex court last year, seeking to appeal an order of the Gauteng High Court in Pretoria, which interdicted the Public Protector's remedial action against Gordhan while he took the report on review.

The Constitutional Court granted leave to appeal against the costs order the High Court gave against the EFF and Mkhwebane in her personal capacity, replacing it with an order for the Public Protector to pay the legal costs incurred by Gordhan, Oupa Magashula and Ivan Pillay in the High Court matter.

The court also decided that no special test is needed for granting interim interdicts against the Public Protector, as the so-called Outa test already provides that these tests must only be used in exceptional circumstances.

Last year, Gordhan launched an urgent application in the high court for an order to temporarily suspend the remedial action of the Public Protector in her report investigating allegations of maladministration in SARS by Gordhan, Pillay, Magashula and others.

The High Court found that Gordhan met the requirements for an interdict.

These requirements were set out in a case involving Outa (Organisation Undoing Tax Abuse) – now called the OUTA test.

The high court also awarded costs against the Public Protector, the EFF, as well as Mkhwebane in her personal capacity.

Arguments in the ConCourt

Both parties filed urgent applications for leave to appeal the high court judgment and orders in the Constitutional Court.

The EFF argued that the judgement interfered with the Office of the Public Protector and that the OUTA test was inappropriate for an interim order against Chapter 9 institutions. They said a new, stricter test had to be developed.

The Public Protector's counsel argued the high court applied incorrect legal standards when it granted the interdict, saying they disregarded the effect it would have on her powers and functions.

She also appealed the personal costs order against her.

Outa test

In deciding on the matter, the Constitutional Court's main concern was the test that should be applied when granting interim interdicts against the Pubic Protector.

It held that the EFF's argument for a stricter test was without merit and the Outa test was already used only in exceptional circumstances.

It said the test was also flexible enough to protect the powers and functions of the Public Protector and found there was no compelling reason to create a new, special test in this regard.

The Constitutional Court also agreed with the high court that the interdict granted to suspend the Public Protector’s remedial action would not interfere with the Public Protector’s duties because once her report is published, she has already completed her duties.

It also found that exceptional circumstances did not exist in the application, and it did not satisfy the interests of justice regarding the appealability of interim orders.

Leave to appeal in both applications were dismissed.

Costs order

However, leave to appeal was granted against the costs order of the high court, finding the court did not apply the applicable legal principles properly.

The costs order against the EFF and the personal costs order against Mkhwebane were both set aside.

The apex court said there was no justification for a personal costs order against Mkhwebane, "in fact, the High Court disavowed any reliance on the adverse allegations made by Mr Gordhan, which could have possibly grounded a personal costs order".

Instead, it replaced the costs order against the two parties with one ordering the Public Protector to pay Gordhan, Pillay and Magashula's costs.

The Constitutional Court also noted the public interest expressed in the matter, as well as criticism of the courts and of the Public Protector, which it encouraged.

However, it warned of the dangers of unreasonable and unsupported criticism against both which, it said, could undermine constitutional democracy.