Public Enterprises Minister Pravin Gordhan has filed a
scathing affidavit in the North Gauteng High Court saying Busisiwe Mkhwebane,
the public protector, has revealed ‘stunning incompetence, irrationality and
negligence’ in the performance of her duties.
He also accuses her of being part of a political campaign
against him and the government’s efforts to eradicate corruption and roll back
the effects of state capture and that the timing of adverse findings against
him were made to influence the composition of Cabinet and constitutes remedial
Gordhan filed a review application in the North Gauteng High
Court on Tuesday asking the court to set aside a report by Mkhwebane which
found he acted improperly in granting early pension with full benefits to Ivan
Pillay, a former deputy SARS commissioner in 2010. He also asks the court to
set aside her jurisdiction to investigate the matter, to declare that she acted
unconstitutionally and to make a punitive cost order against her.
He denies that he acted improperly in the granting of
Pillay’s retirement and says he exercised “great care” before making
the decision. He also consulted widely within SARS and National Treasury and
followed legal advice by duly appointed and competent legal advisers.
In her findings Mkhwebane found that Gordhan did not have
the powers to grant Pillay retirement with full benefits, that it was granted
under the wrong statutes and that it constituted damages to the public purse.
She instructs President Cyril Ramaphosa to take disciplinary action against
Gordhan and SARS to recoup the pension pay out to Pillay. Both the president
and SARS must report back within 30 days.
Gordhan however goes full tilt at Mkhwebane in his founding
affidavit, and besides setting out in chapter and verse what process was
followed before Pillay was granted pension, he argues that Mkhwebane isn’t only
incompetent at executing her functions but that her actions are politically
According to the minister, considered to be Ramaphosa’s
closest ally in attempting to clean up the state, the timing of the report’s
release indicates that there are political motives behind the report. “I
can only conclude that the rush to complete and issue the report…was informed
by improper and irrelevant considerations or an ulterior purpose or motive.”
He believes the report was released the day before
Ramaphosa’s inauguration to “attack” his integrity and to renew “the
ongoing political campaign against me by proponents of ‘state capture’ and
defenders of corruption”.
“I believe that my political opponents, and those who
are fighting back against the work underway to restore the integrity and
stability of state institutions, good governance and to continue the
eradication of corruption, wish to use the report and attack me and undermine
my integrity and good name,” Gordhan says in his affidavit.
The report and the subsequent reaction were an attempt to
claim that he was “tainted” and unsuited to be reappointed to
Gordhan argues that Mkhwebane has shown an inability to
reflect on her own conduct and competency and that she has been castigated by
the court on four occasions, including the review of two reports (Absa and the
SA Reserve Bank as well as the Estina dairy matters), a interdict in the
release of another (into Gugile Nkwinti, a former Cabinet minister) and the DA
and Council for the Advancement of the South African Constitution against the
In all these instances the courts slammed her conduct,
motives and findings. “This track record of adverse findings against the
office of the public protector and Mkhwebane specifically demonstrates, in my
opinion, that she is unfit for the office that she holds and appears unable to
lawfully, constitutionally and rationally exercise its powers.”