Sunday Read: A guide to the Gordhan-Mkhwebane saga as the court readies its ruling

Public Enterprises Minister Pravin Gordhan is expected to hear this week from the Gauteng High Court in Pretoria whether the remedial action against him, as directed by Public Protector Advocate Busisiwe Mkhwebane, should be implemented. 

The two squared off in court just under a week ago with Mkhwebane supported by the Economic Freedom Fighters and the presidency siding with Gordhan. The legal battle centres around her report in early July into the so-called ‘rogue unit’ at the SA Revenue Service (Sars). The unit – also known as the High Risk Investigations Unit – was established in 2007 when Gordhan was the tax agency’s commissioner.

Mkhwebane found that the establishment of the unit was illegal and that it conducted unlawful intelligence operations. Her report stated that the tax agency failed to follow procurement rules when it bought spying equipment for its operations. In the same report she also found that Gordhan lied to Parliament by not disclosing a meeting where a member of the Gupta family may have been present.  

Gordhan is asking the court to suspend the remedial action in Part A of the application and review the entire report in Part B. The review application comes as several other reports by the public protector have been set aside by the court.

The Constitutional Court on Monday found she had lied under oath in her Absa/Bankorp findings which were overturned in February 2018.

Additionally, Ramaphosa himself will also apply to have her report, that stated he violated the executive ethics by lying to parliament over a Bosasa donation, dismissed. 

Should the court rule this week that Mkhwebane’s remedial action should be put on ice, it would have serious implications for the status of her office, her legal representative has argued. 

Here are 9 things you need to know about the Gordhan/Mkhwebane court proceedings as the court readies its ruling: 

1. Urgent August 4 deadline

Gordhan’s legal team argued that the case is urgent due to the 30 days deadline given by Mkhwebane for remedial action to be taken against him in the form of disciplinary action by the President and consideration of criminal charges by the police and the National Prosecuting Authority. The deadline for the remedial action is August 4. “By the time the [full] review is heard, he will already have been subjected to the punitive and prejudicial processes contemplated in the remedial action, and will continue to suffer baseless, but engineered, reputational damage,” Gordhan’s legal papers read. 

2. Old complaint 

According to the Public Protector Act, the ombudsman may not entertain a complaint that is more than two years after the event, but has the discretion to do so in special circumstances. 

“In this case, all the complaints are more than two years old – some of them are more than a decade old. When asked to identify which ‘special circumstances’ she relied on to investigate the complaints, the Public Protector failed to identify any rational grounds for her decision, evaded the question and on occasion contradicted herself,” Gordhan’s legal papers read.

3. Gupta family member 

Mkhwebane found that Gordhan violated the Executive Ethics Code “by deliberately misleading the National Assembly by failing to disclose in 2016 that a member of the Gupta family, Ajay, had been present at his meeting with a Mr Ambani in 2010. Gordhan’s legal team however said that he did not recall that there was a Gupta  present at the meeting and he had no motive to conceal the fact that a Gupta had been present at the meeting.

4. Sars Unit and its conduct

Gordhan’s legal team advanced that Sars has always had its own investigation and enforcement units engaging in a wide range of investigations, including criminal investigations with tax implications. 

“This commendable work came under attack in recent years from powerful business people and politicians whose unlawful gains were being threatened by the work of the Sars investigative unit,” Gordhan’s heads of argument read. 

“The Sars unit was a further manifestation of Sars’ long-standing capacity to investigate tax- and customs-related crimes, so as to protect legitimate South African businesses from the illicit trade, and enhance revenue collection and compliance.” The Public Protector did not make any adverse findings against Gordhan relating to the conduct of the Sars unit, stated Gordhan’s legal team. 

5. Ivan Pillay appointment

The Public Protector found that Mr Pillay was not qualified for appointment as Deputy Commissioner and that his appointment was accordingly irregular and in violation of section 195 of the Constitution. “The Public Protector owes him an apology. There is no prescribed requirement in law for appointment as Deputy Commissioner of Sars. Mr Pillay, like many other South Africans who dedicated their lives to the struggle against apartheid, does not have any tertiary qualification,” according to Gordhan’s legal team.

6. All sides of the story 

The Public Protector was obliged, in accordance with the audi alteram partem (hear the other side) principle, to afford Gordhan, the president, the speaker of parliament, the minister of  state security, the national director of public prosecutions and the commissioner of police opportunities to make representations to her before making remedial orders against them, according to Gordhan’s legal arguments.

“The Public Protector failed to afford Minister Gordhan any opportunity to make representations on the remedial orders she made against him, despite his request for such an opportunity,”’ Gordhan’s legal team stated. 

7. Mkhwebane stands by report

Advocate Thabani Masuku for the Public Protector said that Mkhwebane stands by her report. He argued that the implications of interdicting the remedial action would have serious implications on the status of the office.”

She stands by her report, and she stands by her findings,” said Masuku. He further submitted that the application for the interdict was an “assault to the office of the Public Protector”.  

8. EFF backs Mkhwebane

The EFF staged a picket outside court proceedings on Tuesday and senior leaders of the party were inside the courtroom to support Mkhwebane. The red berets maintain they do not support her as an individual but believe the office of the Public Protector should be respected.

EFF leader Julius Malema warned that they will head to the Constitutional Court if the urgent interdict against the implementation of the remedial action is granted.  

9. Ramaphosa backs Gordhan

President Cyril Ramaphosa has also filed a supporting affidavit in the case. In a statement issued on July 17, the Presidency said Ramaphosa had indicated his support for Gordhan’s suspension application “in as far as the relief sought by the Minister relates to the president”.

“The President says in his submission that it is clear from Minister Gordhan’s review application that there is a bona fide justifiable dispute between Minister Gordhan and the Public Protector over the legal validity of the Public Protector’s investigations and findings and the remedial action she has directed in her report.

“Moreover, Minister Gordhan also takes issue with the tacit assumption of the Public Protector that the President has legal powers ‘to take appropriate disciplinary action’ against the Minister when the Minister is not appointed to the Cabinet as an employee who is subject to disciplinary action but rather as a Minister who serves at the pleasure of the President,” the statement said. As a result, Ramaphosa said it would be “premature for him to attempt to take ‘appropriate disciplinary action’ against Gordhan while the review application in terms of the report is still pending.