Public Protector, Adv Busisiwe Mkhwebane. Picture: ALAISTER RUSSELL / THE SUNDAY TIMES
Public Protector, Adv Busisiwe Mkhwebane. Picture: ALAISTER RUSSELL / THE SUNDAY TIMES

Finance minister Tito Mboweni has approached the high court in Pretoria to have the public protector's findings on the Treasury's director-general, Dondo Mogajane, and her remedial action set aside, describing it as irrational.

Public Protector Busisiwe Mkhwebane concluded in her report released in December that Mogajane's failure to disclose his criminal conviction when he applied for the position of director general in 2017 was dishonest, lacked integrity and was improper. 

The conviction related to an admission of guilt fine that Mogajane paid in relation to a traffic infraction - for driving over the speed limit - in 2011.

In court papers, Mboweni argues that the findings and remedial action are irrational, alternatively unreasonable and "damaging" to the Treasury, which must be seen to execute its mandate with fit and proper leadership.

"As a result of the report of the public protector irrationally concluding that the third respondent [Mogajane] was dishonest, the reputation and image of the Treasury domestically and internationally stands to be severely impacted," Mboweni states in his affidavit to the court.

Mboweni's application is the latest court action against Mkhwebane, who has come under fire for undermining the credibility of the Chapter 9 institution, which is meant to guard democracy and fight corruption.

Mkhwebane found that Mogajane's appointment was improper and ordered that President Cyril Ramaphosa institute disciplinary steps against him within 30 days. She also found that this impropriety was tacitly condoned by then finance minister Malusi Gigaba, who appointed him, as he knew or ought to have known about the nondisclosure.

The public protector instructed Ramaphosa to submit an implementation of plan for the remedial action directed by her.

Mboweni has challenged Mkhwebane's findings on the basis that they are arbitrary and irrational, arguing that she failed to have due regard for relevant facts and instead considered irrelevant facts.

"There is no rational connection between the findings and remedial action and the evidence before her at the time," Mboweni states in his affidavit.

Mboweni argues that the remedial action is "inappropriate" in that it infringes the doctrine of separation of powers. The requirement that Mkhwebane approve the implementation plan represents an unconstitutional breach of the separation of powers in that it effectively usurps the president’s executive constitutional powers to appoint and discipline directors-general and arrogates this power to the public protector.

"This is untenable and undermines the very fabric of SA’s constitutional democracy. In this regard, National Treasury has a material interest in correcting this state of affairs," Mboweni says in his affidavit.

In his defence, Mogajane told Mkhwebane that his application for the position of director general was finalised in haste the day before the deadline by a Treasury official. He admitted that he had mistakenly signed the form without checking its accuracy. He said that he had already disclosed his criminal conviction when he was appointed deputy director general in 2015.

Mboweni said Mkhwebane accepted Mogajane's explanation so the finding that he acted dishonestly is "palpably irrational".

"There is no evidence before the public protector to show that the third respondent [Mogajane] acted dishonestly," Mboweni stated. Mogajane had no intention to mislead his employer, he said.

Mboweni pointed out that Gigaba and the cabinet were made aware of Mogajane's criminal record before he was appointed.

ensorl@businesslive.co.za