Public Protector Busisiwe Mkhwebane. Picture: ESA ALEXANDER / SUNDAY TIMES
Public Protector Busisiwe Mkhwebane. Picture: ESA ALEXANDER / SUNDAY TIMES

Public enterprise minister Pravin Gordhan’s lawyer has challenged public protector Busisiwe Mkhwebane to provide proof that his client colluded with others when responding to her subpoena. 

This was in response to the public protector’s investigation based on a complaint lodged by EFF deputy president Floyd Shivambu about the SA Revenue Service’s (Sars) so-called “rogue unit”.

Mkhwebane on Tuesday said she had received allegations that shortly after implicated parties in her investigation were served with subpoenas, Sars held a meeting attended by most of the parties and that, “at the meeting concerned, the kind of responses she received from the institution and the minister were co-ordinated”.

The allegation was made in a media statement announcing that Mkhwebane had acceded to Gordhan’s request on for an extension to the deadline for the affidavit and supporting evidence he was due to submit.

Mkhwebane is investigating allegations of improper conduct‚ a violation of the executive ethics code‚ and irregular and unlawful activities by the public enterprises minister.

Gordhan’s lawyer, Tebogo Malatji, said his client took “serious issue” with the public protector’s suggestion of collusion. 

“These unfortunate remarks … have no basis in fact and represent conjecture which impugns on the office of the public protector,” Malatji said.

“Minister Gordhan has not met with any person subpoenaed by the public protector nor with any official of the SA Revenue Service in relation to the subpoena issued by the public protector.

“We will be challenging the public protector to provide the factual basis for the statement suggesting that the minister is acting in concert with others and why he is referred to as an implicated party,” he said.

Malatji also took issue with Mkwebane, suggesting that Gordhan had asked for the extension on only April 22 and suggesting that the reason for such a request was access to Sars records.

He said among the issues raised with Mkhwebane was a request for the public protector to provide them with what she considered to be special circumstances, to investigate the matter. 

The Public Protector Act states that her office will not investigate complaints that have been referred to her office within two years from the occurrence, except if there were special circumstances. 

“We also raised issue with her on why such special circumstances exist in the face of a prior investigation by her predecessor, the Hawks, the NPA [National Prosecuting Authority] and the Nugent Commission, which have traversed the issues she is now investigating, and have all effectively concluded that there was no wrongdoing,” Malatji said.

“The minister was also concerned about the short time period to the deadline given the Easter weekend as well as the requirement that he must appear in person to request an extension for submitting an affidavit.”

Malatji said they were yet to receive an official response to the matters raised in a letter sent on April 16, in which the extension was requested. A follow-up letter was sent on April 22, but there had still been no correspondence from the public protector’s office.

He said Gordhan was committed to complying with the constitution, with the letter of the law and with the institutions that the constitution had established to protect and advance democracy and good governance.