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Public Protector Advocate Busisiwe Mkhwebane. (Gallo Images / Daily Sun / Lindile Mbontsi)
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There is much more lurking behind the battle between Pravin Gordhan and Busisiwe Mkhwebane than merely a decade-old pension issue. It represents a proxy war between President Cyril Ramaphosa and those resisting recovery and reform post state capture. And the latter includes Julius Malema, writes Pieter du Toit.
The raging conflict between Public Enterprises Minister Pravin Gordhan and Public Protector Busisiwe Mkhwebane isn't really about the inane issue of a pension grant.
It's also not about whether Gordhan had the authority to approve early retirement for a senior government official or whether the state suffered any losses.
It is really about the resistance against government-wide reforms that President Cyril Ramaphosa has promised to implement and that Gordhan is tasked with leading. It's about launching an assault on credible government ministers and bona fide efforts to clean the state of the remnants of capture and corruption.
And it has found fertile ground among those who have something to hide, including EFF leader Julius Malema, who has been leading a quite extraordinary vitriolic and poisonous campaign against Gordhan. Malema, it must be remembered, was the subject of a tax inquiry when Gordhan was Minister of Finance and still has to answer for his role in the On-Point Engineering scandal. He has much to fear.
The antagonism towards Gordhan could well be about retaining access to networks of patronage via state-owned companies, but it's more than likely about preventing accountability and justice from being exacted, thanks to efforts of people like him.
Whatever it is, the outcome of the review application that Gordhan brought against Mkhwebane on Tuesday will be the result of a zero-sum game.
If the court upholds the application and sets aside Mkhwebane's report and findings into Gordhan's conduct in the pension issue, then it will be tickets for her.
She has already had two reports set aside (Absa/SA Reserve Bank and Estina diary project) and another interdicted from being released (the matter of Gugile Nkwinti), which in and of itself should lead to a parliamentary inquiry. Another decision against her, however, would surely be the death knell.
Similarly, if the court rejects Gordhan's application and finds that the report is constitutional, valid and legal, the political pressure on the public enterprises minister could be so overwhelming and detrimental to his and Ramaphosa's efforts at good governance, that he might well be forced to resign. This, even though there is no intimation of criminal conduct, corruption or any other malfeasance except procedural irregularities.
Given the facts on the table, the history of the matter and Mkhwebane's poor track record, the latter seems unlikely. (In his founding affidavit, Gordhan says she is unfit for her position and appears unable to "lawfully, constitutionally and rationally" exercise her powers.)
The High Court has twice absolutely walloped Mkhwebane. In the Absa/SA Reserve Bank matter, the court found she "does not fully understand her constitutional duty to be impartial and to perform her functions without fear, favour of prejudice…" And in the Estina matter, the court said her findings and conclusions point "either to ineptitude or gross negligence in the execution of her duties".
The pension matter (Gordhan, while finance minister in 2010, granted SARS deputy commissioner Ivan Pillay early retirement, with full benefits) has been traversed three times.
First, when the decision was made in 2009-'10 after consultation in SARS, National Treasury and the Department of Public Service and Administration. Secondly, in 2016, when former president Jacob Zuma's hatchet man, Shaun Abrahams, attempted, and failed, to make fraud charges linked to the pension matter stick. And, thirdly, at the Nugent commission of inquiry into SARS this year, when nothing untoward about the pension arrangement was found.
Eventually, the High Court will have to decide, once and for all, how to interpret the facts.
The Abrahams intervention of 2016 was a very clear and transparent attempt by Zuma's state capture cronies to weaken Treasury by neutralising Gordhan to enable them to take control.
Those resisting state reform are now using the same tactics, and the same set of facts, to thwart the state cleanup and weaken Ramaphosa.
It's a dirty war for resources, power and immunity and there will be casualties. Hopefully the truth won't be one.
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