Public protector Busisiwe Mkhwebane. Picture: ESA ALEXANDER
Public protector Busisiwe Mkhwebane. Picture: ESA ALEXANDER

Amid mounting allegations of a  witch hunt, public protector Busisiwe Mkhwebane moved on Monday  to allay concerns about her probe of public enterprises minister Pravin Gordhan, saying she is still deciding whether to proceed with it or not.

Gordhan is facing an onslaught from allies of former president Jacob Zuma, who have now been joined by the EFF in taking on the minister, in a move reminiscent of the 27 questions he was sent by the Hawks on the eve of delivering the 2016 budget.

A statement released by her office said the probe into Gordhan was only at a “preliminary stage”. She was still  gathering information to help her decide whether to proceed. She also denied in the statement that her subpoena of the minister to appear before her on Wednesday was timed to coincide with Gordhan’s testimony before the commission of inquiry into state capture. 

Gordhan is expected to make a submission to  Judge Raymond Zondo’s commission in an eagerly awaited appearance on Thursday.  

At the heart of Mkhwebane’s investigation is the early pension payout to former SA Revenue Services (Sars) senior official Ivan Pillay during Gordhan’s first stint as finance minister. Oupa Magashula was Sars commissioner at the time. 

The National Prosecuting Authority (NPA) withdrew charges linked to the pension payout against Gordhan, Magashula and Pillay in October 2016. Mkhwebane received a complaint about the matter in November 2016 and only acted on it in February 2018.

Mkhwebane has complained to parliament about a lack of resources to conduct investigations, prompting critics to label the Gordhan investigation a waste of the scarce resources in the office. Her office has failed to report its financial statements in compliance with the Public Finance Management Act.

Gordhan’s lawyer, Tebogo Malatji, in a statement released on Sunday,  described Mkhwebane’s comments that Gordhan had not responded to her correspondence over the probe as  “simply deceptive, false and incorrect”. Malatji said it was Mkhwebane who had not responded to Gordhan when he wrote to her requesting further information on the investigation.

In her response to Malatji’s statement, the public protector stuck to her allegation that Gordhan had not responded to the allegations against him as she had requested. 

Mkhwebane said allegations that the investigation was meant to embarrass and frustrate Gordhan on the eve of  his appearance before the commission were false as she had subpoenaed him 20 days before finding out when he was expected to appear.

Mkhwebane tweeted details of her investigation last week and in a statement further hit out at Gordhan over his use of an attorney to speak on his behalf. She says attorneys or advocates are not allowed to speak on behalf of a person under investigation by her office. The law provided only for “legal assistance” not “legal representation”, she said.

Gordhan is set to appear before Mkhwebane on Wednesday, after he was subpoenaed to do so. She said in the statement that her office is empowered to conduct a “preliminary” investigation in order to “determine the merits of complaints, allegations or information”.

“The investigation into the alleged conduct of minister Gordhan is therefore at a preliminary stage. Accordingly, the public protector is affording him an opportunity to respond to the allegations or the complaint,” she said in the statement.

“During the preliminary investigation stage, the public protector gathers all relevant evidence from any person who may be in a position to assist.”

She also  said she is empowered to investigate alleged improper conduct emanating from allegations contained in “media reports”. Responding to criticism that the NPA had found no evidence to sustain criminal charges against Gordhan over the matter of Pillay’s pension payout and his reinstatement, Mkhwebane says she is empowered to investigate maladministration which may not amount to criminal conduct. 

In her statement she details the consequences of a refusal to comply with her requests for information to aid her investigation, saying conviction for such an offence could result in a fine, imprisonment or both.

Aside from the financial problems in her office, Mkhwebane is facing legal challenges of her own, with the Constitutional Court set to hear an appeal by her against a personal costs order of just under R1m.

The matter relates to her conduct in the investigation into the “lifeboat” loan by the SA Reserve Bank to Bankcorp, a precursor to Absa. The Bank is arguing that Mkhwebane had abused her office in the investigation, in which she met with both the State Security Agency and former president Zuma, during the probe. Her remedial action in the matter was reversed by the courts, after she overstepped her mandate by directing the government to change the mandate of the Bank.