Mkhwebane vs Gordhan: Public Protector's conclusion on Pillay retirement 'irrational', court hears

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Public Protector Busisiwe Mkhwebane
Public Protector Busisiwe Mkhwebane
PHOTO: Jan Gerber, News24
  • Pravin Gordhan's legal team submitted in court that the Public Protector's conclusion on Ivan Pillay's retirement was "irrational".
  • The High Court further heard that an error of law did not amount to a breach of constitutionality.
  • Gordhan was making an application before the High Court to review and set aside the PP's report 24 of 2019/20.

Public Protector (PP) Busisiwe Mkhwebane's conclusion that in approving former SARS deputy commissioner Ivan Pillay's retirement, then-finance minister Pravin Gordhan was guilty of improper conduct, was "irrational", the Gauteng High Court in Pretoria heard on Wednesday.

"She finds that he is guilty of improper conduct because he made six 'errors of law', nothing more. The Public Protector ought to know that merely to make an error of law does not equate to improper conduct," advocate Wim Trengove SC argued on behalf of Gordhan.

"Was Gordhan guilty of making those errors of law in his approval of Pillay’s early retirement? We will submit that he is not, his decision was entirely lawful," the court further heard.

These submissions were heard before the High Court as Gordhan made an application to review and set aside the PP's report 24 of 2019/20.

READ | Mkhwebane was determined to make findings against me 'irrespective of evidence to the contrary' - Gordhan

The PP's report found, among other things, that the allegation that Gordhan irregularly approved the early retirement of Pillay with full retirement benefits and his subsequent retention at SARS, was substantiated.

The PP further found in her report that Gordhan's conduct amounted to improper conduct as envisaged by section 6(4)(a)(ii) of the Public Protector Act.

As a result, Mkhwebane recommended in her remedial actions that the President of the Republic of South Africa take appropriate disciplinary action against Gordhan for failing to uphold the values and principles of public administration entrenched in section 195 of the Constitution, and the duty conferred on members of the Cabinet in terms [of] section 92(3)(a) of the Constitution, to act in accordance with the Constitution.

Minister's decision a 'model of executive decision-making'

Trengove submitted that the six errors of law could not amount to a breach of constitutionality and that the minister's decision was a model of executive decision-making.

"He took more than two months to make up his mind; he took advice from experts; he took the decision in an exemplary fashion, so with respect, the conclusion that he is guilty of improper conduct is irrational.

"We all make errors of law, but there is no impropriety in making an error of law as long as the decision was carefully made," he argued.

Trengove added that this two-month process included consulting six experts openly, rationally and that they were properly selected for their expertise.

"All six experts told him that it would be lawful for him to approve the retirement package; we submit that the decision was a model of executive decision-making," he added.

Following his retirement in December 2010, Pillay returned to SARS on a fixed term contract. Trengove, however, submitted that retirement did not preclude the possibility of a fixed contract after.

"You cannot say that retirement precludes the possibility of a fixed contract after. Retirement is a change of status, the fact that the employee takes out a fixed contract, temporary employment does not change that status," he argued.

The matter continues.

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