South Africa

The Gordhan Knot

Ramaphosa faces fraught decision over immediate fate of his trusted ally

Public Protector Busisiwe Mkhwebane during a meeting at the Mpumalanga legislature on March 02, 2017 in Nelspruit, South Africa. (Photo by Gallo Images / Sowetan / Sandile Ndlovu) / Former Finance Minister Pravin Gordhan in Johannesburg, South Africa, 19 November 2018. EPA-EFE/STRINGER

It is highly likely that President Cyril Ramaphosa intends to appoint former Public Enterprises Minister Pravin Gordhan to his new Cabinet. But a Public Protector report released on Friday implicating Gordhan in wrongdoing now puts Ramaphosa in a sticky spot. However unreliable the Public Protector’s recent reports have been found to be, can Ramaphosa’s New Dawn justify the appointment of a Cabinet minister with a cloud over his head, no matter how radioactive it is?

The President of the Republic of South Africa must “take appropriate disciplinary action” against former Finance Minister Pravin Gordhan “for failing to uphold the values and principles of public administration entrenched in section 195 of the Constitution, and the duty conferred on members of the Cabinet”.

That is one of the major findings of Public Protector Busisiwe Mkhwebane’s latest report investigating the retirement package granted to former deputy SARS commissioner Ivan Pillay in October 2010.

Mkhwebane found that there was not a “rational” reason for Gordhan’s approval of Pillay’s early retirement, only to re-hire him under a new fixed-term contract at SARS. She added:

When these circumstances are considered together with the fact that Minister Gordhan and Mr Pillay had a longstanding political kinship dating back to the 1970s, it would not be straying from the realm of reasonableness to draw the conclusion that this was simply an elaborate arrangement designed to retain Mr Pillay on preferential terms”.

This ostensibly damning Public Protector report has arrived at an interesting time.

It was released by Mkhwebane on Friday 24 May 2019, one day before the inauguration of President Cyril Ramaphosa, during the short period between the swearing-in of MPs and the announcement of Ramaphosa’s new Cabinet.

The report also comes just two days after the announcement that deputy president David Mabuza would be suspending his own swearing-in as MP until he had had a chance to clear his name in front of the ANC’s Integrity Commission following accusations of Mabuza’s allegedly criminal conduct in Mpumalanga.

A statement released by the Presidency in the wake of Mabuza’s decision applauded the deputy president for following “the dictates of his own conscience” in resolving to “put the interests of the ANC first”.

The obvious question posed by the release of the Public Protector report into Gordhan is whether Gordhan should similarly be excluded – or exclude himself – from consideration to be selected as a member of Ramaphosa’s executive under these circumstances.

Thus far, there has been no indication that Gordhan is considering a similar move to Mabuza’s.

On his side, Gordhan has the controversial track record of the Public Protector. Mkhwebane’s reputation arguably reached its nadir with the recent finding of the North Gauteng High Court that her report on the Gupta and Ace Magashule-linked Estina Dairy Farm project should be set aside due to her failure “to execute her constitutional duties”.

Even before the release of the Gordhan report, there had been a flurry of calls from legal scholars and opposition politicians for Mkhwebane to be removed from her post by Parliament for incompetence.

Gordhan has announced his intention to immediately institute legal review proceedings against Mkhwebane’s report. A statement from Gordhan’s lawyers described the Public Protector’s findings as “totally wrong both in fact and in law”.

Mkhwebane states in the report that she received responses to questions she submitted to former SARS commissioner Oupa Magashula and Gordhan only on 21 and 22 May 2019. She was nonetheless able to bring out her full report less than 48 hours later, on 24 May.

Gordhan’s lawyers say that his responses to her questions appear “not to have been taken into account”.

Mkhwebane’s peculiar haste to release her report inevitably raises eyebrows, given the significance of this particular time period just before Ramaphosa is due to announce his executive.

Adding to Ramaphosa’s headache: the EFF’s Julius Malema has warned that, under these circumstances, the president cannot appoint Gordhan as a minister and still purport to honour the Constitution.

Malema has called on Ramaphosa to exclude Gordhan from consideration until he has cleared his name.

Though the EFF has claimed that this stance is consistent with their support for former Public Protector Thuli Madonsela in her adverse findings against former president Jacob Zuma, the Fighters’ attempts to discredit Gordhan in the past have been multiple.

Those who have suggested that Gordhan is the victim of political currents behind the scenes include the body Freedom Under Law.

In a statement released on Sunday, Freedom Under Law declared itself “dismayed but not surprised” at the Public Protector’s “attempt to reheat a long cold dish and serve it up to the public as evidence of wrongdoing”.

The organisation said it was important to remember that Gordhan had already been falsely accused of the same charges in the Pillay retirement saga by the National Prosecuting Authority (NPA), only to have the charges withdrawn in October 2016 in what was widely viewed as a humiliating exposure of the NPA’s capture.

The Organisation Undoing Tax Abuse (Outa) has similarly asked why charges on which Gordhan has already been cleared are being rehashed.

Gordhan has also received implicit support from trade union federation Cosatu, which said in a statement that while Cosatu was not claiming that anyone implicated by the Public Protector was a “shining innocent”, it felt that Mkhwebane was “ill-equipped to make any judgments against anyone”.

The federation advised that President Ramaphosa set aside all the Public Protector’s current reports until the implications of the North Gauteng High Court ruling on the Estina matter had been fully explored.

Cosatu stated: “We appeal to the fair-mindedness and fairness of President Cyril Ramaphosa to not act on any of her reports until the Pretoria High Court ruling has been scrutinised and dealt with”.

Opposition party the Congress of the People (Cope), meanwhile, openly accused Mkhwebane of attempting to meddle in Ramaphosa’s decision-making.

We are very disturbed with the blatant disrespect shown by [Mkhwebane] in releasing controversial reports that are intended to divert President Cyril Ramaphosa in appointing his Cabinet,” Cope stated.

Gordhan has been one of Ramaphosa’s most trusted lieutenants in the “New Dawn” operation to undo the damage of the Zuma years of State Capture. It is virtually certain that Ramaphosa had a key role in mind for Gordhan in his new Cabinet.

If Ramaphosa is to appoint Gordhan now, however, he will have to weather the inevitable storm that will follow from some quarters, accusing the president of undermining his stated commitment to clean governance by selecting a minister with this Public Protector-manufactured cloud hanging over his head.

Were Ramaphosa to appoint Gordhan to his Cabinet regardless, it would surely be a sign that the Public Protector is living on borrowed time – an indication that many others would welcome. DM

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