Minister Pravin Gordhan. Picture: REUTERS
Minister Pravin Gordhan. Picture: REUTERS

Public enterprises minister Pravin Gordhan will take public protector Busisiwe Mkhwebane's report on the early pension payout to former South African Revenue Service deputy commissioner Ivan Pillay on review.

Mkhwebane on Friday released her report finding that Gordhan had acted improperly when he approved the early pension payout. In her remedial action she instructed President Cyril Ramaphosa to take disciplinary action against Gordhan for “violating the constitution”. 

"Minister Gordhan is advised by us and senior counsel that the public protector’s findings, are totally wrong both in fact and in law," Gordhan's lawyer Tebogo Malatji said.

He said Gordhan's submission made to the public protector two days ago seemed to not have been taken into account. 

The public protector announced her findings a little under 48-hours from when the minister had submitted his response. 

"In light of the most recent judgment in relation to the Vrede dairy project, minister Gordhan is of the view that the public protector has once again erred in her findings and proposed remedial action. We are instructed to institute review proceedings immediately," Malatji said.

Earlier this week the high court in Pretoria reviewed and set aside Mkhwebane's report on the Gupta-linked Vrede dairy farm project and declared it unconstitutional and invalid.

The court further declared that in investigating and reporting on the matter, Mkhwebane had failed in her duties under the Public Protector Act and the constitution.

When asked on Friday if she would be able to defend her report into Gordhan in court, Mkhwebane said: "We will try our level best to defend ourselves".

The release of the report comes amid mounting allegations of witch-hunt against Gordhan.

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

A 2009 memorandum from then Sars legal officer, Vlok Symington, legally cleared the early retirement. It suggested that Gordhan, Pillay and Magashule had acted on legal advice.

Mkhwebane's investigation into Gordhan came after a anonymous complaint was lodged in November 2016.

Gordhan appeared before the public protector two years later in November 2018.

Malatji, going through the timeline, said on May 2 the minister received a notice in terms of Section 7(9) of the Public Protector Act, to respond to various grounds on which Mkhwebane intended to make adverse findings against Gordhan. A response was required within 14 days.

He said the minister submitted his response on May 22. On Friday, Gordhan received a letter from Mkhwebane advising him that she had declined his request that he be given a further opportunity to make submissions on appropriate remedial action. This was because the Section 7(9) notice did not set out the proposed remedial action, Malatji said.

"Minister Gordhan takes issue with both the haste and the timing of the release of her report," his lawyer said.

"The complaint involves complex considerations of pension fund laws in as far they relate to public servants. It is doubtful whether due consideration was given to minister Gordhan’s submissions."

Malatji said the haste and the timing of the public protector showed a "complete disregard" for the inauguration of the president which was taking place on Saturday.

quintalg@businesslive.co.za