Public Protector Busisiwe Mkhwebane’s report is being used as a political campaign against public enterprises minister Pravin Gordhan. This is what he is alleging, following the findings against him by the Public Protector in her report last Friday.
On Tuesday morning Gordhan filed an application to have the report set aside. The report found that Gordhan had acted improperly when he granted an early pension payout for former Sars official, Ivan Pillay.
As part of her remedial action against Gordhan, Mkhwebane recommended that President Cyril Ramaphosa institute disciplinary action against him for “violating the Constitution”.
In a statement released on Friday night, Gordhan’s lawyer Tebogo Malatji said that they believed that the Public Protector’s findings were “totally wrong both in fact and in law”.
In the application, which City Press has seen, Gordhan labels Mkhwebane’s report as “fatally flawed”, and should be set aside on the grounds that:
• The Public Protector had no jurisdiction “to entertain this complaint since it related to matters that commenced in or about March 2009, more than 10 years ago”;
• That the report is “riddled with reviewable errors”;
• That its findings and remedial action are based on “flawed logic and a misunderstanding of the facts”;
• The report is a product of a “procedurally unfair and flawed process”; and
• It “imposes incompetent, inappropriate and improper remedial action on the President, [former Sars commissioner Oupa] Magashula and the commissioner”.
Gordhan, in the application, goes on to explain his role in approving the request for early retirement and early payout to Pillay, stating that on March 17 2009 he had received a memorandum from senior Sars official Vlok Symington and that on August 12 2010, Magashula had addressed a memorandum to Gordhan, seeking the approval for the early retirement and re-employment of Pillay on a fixed-term contract.
In Magashula’s memorandum, Gordhan explains the reasons behind Pillay’s request for wanting the early pension payout.
“I was told in that memorandum that Mr Pillay sought in this way to gain access to his pension fund to finance the education of his children.”
After assurances by Magashula who had made the necessary enquiries with the department of public service and administration, “Mr Pillay’s early retirement and re-employment were lawful and not unusual”.
Gordhan argues that he had consulted with several high-ranking officials within Treasury, the department of public service and administration, and Sars, before approving Magashula’s memorandum.
“I believe that the report was issued when it was issued, with the findings and remedial action it contained, so as to enable a renewal of the ongoing political campaign against me by proponents of “state capture” and defenders of corruption,” Gordhan says in his application.
Gordhan labels Mkhwebane as being unfit to hold office, after he has had to join a “long line of litigants who have had to turn to the courts to ensure that this Public Protector and Advocate Mkhwebane acts in accordance with the law and the Constitution”.
On Saturday, Freedom Under Law questioned the timing of the report, labelling it as an attempt to “reheat a long cold dish”.
“This attempt to reheat a long cold dish and serve it up to the public as evidence of wrongdoing is on its own alarming. But that the Public Protector releases her report a mere two days after receiving responses from the implicated parties – failing to meaningfully engage those responses – makes a mockery of the most basic tenets of justice. She does so in a week in which a court has found in respect of another of her investigations that: the Public Protector did nothing to assure the public that she kept an open and enquiring mind and that she discovered, or at least attempted to discover the truth,” Freedom Under Law chief executive Nicole Fritz said.
On Monday, the Ahmed Kathrada Foundation also called into question the competency of “the Office of the Public Protector to discharge its constitutional and legal obligations”.
The foundation’s executive director, Neeshan Balton, said that the timing of the report was “made with only one purpose in mind, to try and influence the president’s choice of Cabinet members”.
“The report was made public a mere two days after those implicated had filed their responses to the Public Protector. This resembles an administrative charade rather than following due process,” Balton said.
The EFF has come out in full support of Mkhwebane’s report, saying on Monday that they were opposed to her removal from office. “We reject the calls as a direct attack on a Chapter 9 constitutional institution. They are also reactionary and steeped in the politics of personality cult as they [the Ahmed Kathrada Foundation] portray Pravin Gordhan above the law and not subject to a Chapter 9 institution,” the EFF said.