PP vs Gordhan: 5 key quotes from Mkhwebane’s report

Public Protector Busisiwe Mkhwebane has found against Public Enterprises Minister Pravin Gordhan in terms of his approval of the early retirement and payout of former deputy-SARS commissioner, Ivan Pillay.

Gordhan was Finance Minister at the time.

In her report, entitled ‘Investigation into allegations of maladministration and impropriety in the approval of Mr Ivan Pillay’s early retirement with full pension benefits and subsequent retension by the South African Revenue Service’, Mkhwebane finds Gordhan guilty of ‘improper conduct’. It was released on Friday.

Gordhan, along with Pillay and former SARS boss, Oupa Magashula have all since indicated that they would take her report on review. Several organisations have also since called for Mkhwebane’s head, claiming she was unfit to hold office.

Here are 5 key quotes from her report:

1. On why the investigation was instituted

“The complaint was lodged anonymously on 18 November 2016 alleging that Minister Gordhan approved, in his capacity as the-then Minister of Finance and on the recommendation of [Oupa] Magashula: Mr Pillay’s application for early retirement and payment of his retirement package, the further payment of SARS of a penalty in the amount of R1  141 178, 11, which was levied on Mr Pillay’s pension benefits by the Government Employees Pension Fund and would allow him to enjoy full pension benefits as though he had retired at a statutory age, Mr Pillay’s subsequent retention as Deputy Commissioner of SARS on a fixed-term contract basis following the approval of his early retirement.”

2. On ‘maladministration’ allegations

“It is the complainant’s contention that Pillay and Magashula as well as Minister Gordhan’s conduct amounted to maladministration in that they failed to prevent SARS from incurring irregular, fruitless and wasteful expenditure … and [violated the Public Finance Management Act].”

3. On the Investigation

“The investigation was conducted by way of correspondence and interviews, an analysis of relevant documentation as well as the consideration and application of relevant laws, related prescripts and case law.”

4. On Gordhan’s ‘improper conduct’

“Mr Pillay was not entitled to early retirement with full pension benefits under section 16(2A) of the Public Servants Act because the section makes no provision for such full retirement benefits. Section 16(2A) of the PSA only confers a right on an employee to retire from public service upon reaching the age of 55 years. In terms of that section, no ministerial approval need to be sought.

“Even if  the request by Mr Pillay for early retirement had been sought in terms of … the PSA, Minister Gordhan would also not have been authorised… [under the PSA] to approve Mr Pillay’s full pension benefits because the benefits to which an employee is entitled to on early retirement is regulated [under the PSA] … no ministerial approval is required in such instance. Minister Gordhan’s conduct therefore amounts to improper conduct…”

5. On ‘Violating the Constitution’

“[The President] to take note of the findings in this report in so far as they are related to the erstwhile Minister of Finance, Mr Gordhan and to take appropriate disciplinary action against him for violating the Constitution.” 

Gordhan also issued a statement on Friday, saying he had been advised by his senior legal council that the Public Protector’s findings were “totally wrong both in fact and in law”.