Public Enterprises Minister Pravin Gordhan is diverting attention away from the subject matter contained in Public Protector Busisiwe Mkhwebane’s report into allegations of maladministration, corruption and improper conduct by the SA Revenue Service (Sars) and into his personal violation of the executive ethics code. Instead Gordhan is engaging in personal, emotive attacks on the Public Protector.
This is the sentiment of Mkhwebane, who on Thursday responded to Gordhan’s urgent application filed at the Pretoria High Court to interdict the Public Protector’s remedial action contained against him in the now infamous “Sars rogue unit” report.
“It is our considered opinion that the emotive language and personal insults, and blatant lies or innuendos are meant to divert attention [away] from the real issues and findings,” Mkhwebane said in a statement released by her office.
She added that although she was disappointed in how Gordhan phrased his application, she would “only be commenting on the facts of the matter”.
Mkhwebane also revealed that she had not yet been served with court papers, but would be defending the matter as she was confident of the veracity of her findings.
Her response came after Gordhan, in his application, called her “unfit to hold office”.
In some choice words used in his application, Gordhan said that Mkhwebane, as Public Protector, “continues to ignore her constitutional mandate and acts without regard to the provisions of the law”.
In a court file consisting of an affidavit written by Gordhan, with supporting annexures of more than 1 000 pages, which City Press has seen, the minister rejected the Public Protector’s findings regarding the Sars report.
The report found that Gordhan was guilty of “deliberately misleading the National Assembly” and that his conduct with regards to meeting Ajay Gupta, “amounts to conduct that is inconsistent with his office as a member of Cabinet”, while his establishment of an intelligence unit – referred to by many as a rouge unit – was “in violation of the South African intelligence prescripts”.
However, Gordhan, in his application to the high court, argues that it is not illegal for Sars to establish an investigative unit and that the law Mkhwebane used to evaluate the allegations is incorrect and that she recklessly made her findings against him.
“Advocate Mkhwebane personally, dishonestly or alternatively recklessly made her findings in the report against minister Gordhan in that [her office] knew that the findings were false or were reckless as to their truth,” said the affidavit.
Gordhan argues that Mkhwebane’s interpretation of the law is influenced by errors. He goes as far as accusing her of not doing a proper investigation because she has an ulterior motive or is influenced by the political motives of others.
“The Public Protector misapplies the provisions of the Constitution and applicable legislation when making adverse findings, for example section 209 of the Constitution regulates the establishment of intelligence service,” Gordhan said.
The report, which was released last week, instructed President Cyril Ramaphosa to discipline Gordhan for his role in the establishment of the rogue unit, with the EFF also demanding that Ramaphosa act against Gordhan as the Public Protector had already made her findings against him.
In addition to applying to the court for an interdict, Gordhan has asked the court to award a punitive costs order against Mkhwebane to stop her from using state funds in her unlawful conduct.
“The taxpayers of South Africa should not have to continue to fund her unlawful conduct,” he said.
“The Public Protector has confirmed that I am the subject of three ongoing investigations by her office. I am not aware of anyone who has been singled out and pursued by her office in this way,” he said.
Mkhwebane has until Monday to file opposing papers.