Gordhan lawyers say ruling on Mkhwebane’s Pillay report shows her bias
Pretoria high court has overturned Busisiwe Mkhwebane’s report that found Gordhan had irregularly approved retirement payout to Ivan Pillay
Pravin Gordhan's lawyers say a recent high court ruling that overturned public protector Busisiwe Mkhwebane’s report on an early retirement payout to Ivan Pillay shows her office's bias against Gordhan.
A full bench of the high court in Pretoria has overturned her report that found the public enterprises minister had irregularly approved the early retirement of former SA Revenue Service (Sars) deputy commissioner Ivan Pillay with benefits in 2010. Gordhan was `the finance minister at the time.
Gordhan's lawyers, Malatji and Co Attorneys, said in a statement on Sunday: “In our view, this judgment bolsters our client’s belief that he has been subjected to a series of unlawful and unfair investigations by the office of the public protector.”
The statement quoted parts of the judgment, including: “There is nothing in the report that establishes that minister Gordhan as a member of cabinet or otherwise, contravened any of the basic values and principles governing public administration or that he acted contrary to any of the duties of members of cabinet provided for in the constitution.”
In her report, Mkhwebane recommended that President Cyril Ramaphosa take disciplinary action against Gordhan. Mkhwebane’s probe was prompted by an anonymous complainant.
Gordhan, who denied any wrongdoing, took legal action in 2019 to have the report overturned. Pillay and former Sars commissioner Oupa Magashule then joined Gordhan in the litigation against Mkhwebane. On Thursday, the high court set the report aside.
“What the court is required and permitted to do in the application of this nature, is merely to ask itself whether the decisionmaker acted rationally in making the decision she or he made, and for that purpose one looks at the reasons given by the decisionmaker for the decision she or he made and it is not required or permitted for the court to inquire into the question whether there might be other reasons for the same conclusion,” the 111-page judgment reads.
“It is in that respect that we finally conclude that the public protector’s decision [findings], and by extension her report, should be reviewed and set aside.”
The complaint that resulted in the protracted legal battle was lodged anonymously on November 18 2016. It claimed Gordhan had approved Pillay’s early retirement and re-employment on a fixed-term contract as deputy commissioner with full benefits “as though he had retired at a statutory age”.
“The essence of the complaint was that minister Gordhan and Mr Magashula acted dishonestly in their dealing in this matter and placed Mr Pillay at an advantage,” the judgment reads.
“Furthermore, Sars has incurred fruitless and wasteful expenditure in paying the penalty on behalf of Mr Pillay. The complaint as such contended that Messrs Magashula and Pillay as well as minister Gordhan’s conduct, amounted to maladministration in that they failed to prevent Sars from incurring irregular, fruitless and wasteful expenditure.”
Mkhwebane launched an investigation.
“The allegation that minister Gordhan irregularly approved the early retirement of Mr Ivan Pillay with full retirement benefits and his subsequent retention at Sars is substantiated,” Mkhwebane found.
“Since neither Mr Pillay’s request for early retirement nor Mr Magashula’s recommendation to minister Gordhan contemplated retirement, there was no retirement in fact and in law. If there were no retirement in fact and in law, it can be concluded that Mr Pillay was not entitled to early retirement with full pension benefits under any statutory provision.”
Mkhwebane also found that even if the contentious retirement was “in fact a retirement”, Gordhan had no authority to approve it. She recommended that disciplinary action be taken against Gordhan. She also urged the Sars commissioner to recover the levy Sars paid on behalf of Pillay from the both Pillay and Magashula. She recommended that the Sars commissioner should “ensure that Sars introduces as part of their recruitment process, regulations, policies and practices which are clear and unambiguous relating to early retirement and staff retention”.
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