Mkhwebane report politically motivated, Gordhan tells court
The public protector’s report on a Sars payout ‘was informed by improper and irrelevant considerations, or an ulterior purpose or motive,’ Gordhan says
Pravin Gordhan contends that the timing of the release of public protector Busisiwe Mkhwebane’s report, which found he acted improperly, was suspicious and indicated that it was politically motivated.
This was contained in an affidavit submitted by Gordhan in his application to the High Court in Pretoria to review and set aside the public protector’s report into the early pension payout of former Sars deputy commissioner Ivan Pillay. At the time, Gordhan was finance minister and Oupa Magashula was Sars commissioner.
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Mkhwebane released the report on Friday ahead of Ramaphosa’s inauguration as president and the pending announcement of his cabinet, which is expected to include Gordhan — who was brought back into the executive by Ramaphosa last year and has been instrumental in the clean-up of state-owned enterprises (SOEs).
In the past year there has also been a fight back against him, led by allies of former president Jacob Zuma and the EFF, in a bid to have him removed from the cabinet. The EFF have also been defending Mkhwebane, who will face another attempt in parliament to remove her from office.
The party said it had instructed its lawyers to join in the legal defence of the public protector’s report. “It is clear that this office is under attack by the ‘thuma mina’ faction, and it must be defended by all constitution-loving South Africans,” EFF spokesperson Mbuyiseni Ndlozi said in a statement.
In his affidavit to the court, Gordhan detailed his interactions with Mkhwebane and his submissions to her office. “It was as if they were ‘going through the motions’ and intended to find against me, and Messers Pillay and Magashula from the outset,” he said.
Gordhan said he made final submissions on to Mkhwebane on May 22, after she informed him that she was making adverse findings against him. Two days later she released the report.
He said the final report demonstrated that Mkhwebane did not consider, or could not meaningfully have considered, his submissions in the available timeframe.
“The timing is suspicious and indicates that the report was politically motivated ... I can only conclude that the rush to complete and issue the report within two days of the receipt of my submissions, and those of other implicated persons, was informed by improper and irrelevant considerations, or an ulterior purpose or motive,” Gordhan said.
He said there was no other plausible explanation for why Mkhwebane had effectively ignored his submissions. “I believe that the report was issued ... so as to enable a renewal of the ongoing political campaign against me by proponents of state capture and defenders of corruption.”
Gordhan said he had nothing to hide, which was why he was bringing the review application, unlike others who threatened legal action yet never instituted litigation.
He also said Mkhwebane did not have jurisdiction over the complaint under the Public Protector Act and that her report was riddled with reviewable errors. He said her report misstated the applicable legal framework for the approval of the early retirement with full benefits for Pillay.
“It rests its findings and remedial action on flawed logic and a misunderstanding of the facts. It is also a product of a procedurally unfair and flawed process,” Gordhan said.
He said the report also imposed incompetent, inappropriate and improper remedial action.