Public Protector Busisiwe Mkhwebane’s most recent report focusing on Public Enterprises Minister Pravin Gordhan not only instructed President Cyril Ramaphosa to take disciplinary action against Gordhan within a month, but also asked the National Prosecuting Authority (NPA) and the police to investigate possible criminal charges against him.
As we first reported on Monday, Gordhan has turned to the courts once again. His lawyers aim to try to stop these recommendations from being implemented and to have Mkhwebane’s report set aside entirely.
As the 79-page application makes clear, Gordhan has officially had enough.
“The erroneous findings and remedial action imposed by the Public Protector have had an enormous personal and political impact on me,” the court papers state.
“They have detrimentally affected perceptions of my character, maligned my reputation and adversely affected my standing as Minister of Public Enterprises. They attempt to distract me in an effort to prevent me from doing my job effectively. I am entitled to challenge them on that basis alone.”
On this occasion, Gordhan’s lawyers have not only disputed the factual findings and methodology of Mkhwebane’s most recent report, but also laid out damning context for the political environment from where the report springs.
One of Gordhan’s catch-phrases over the past few years has been an exhortation to “join the dots”. In this application, he further urges the court to see the Public Protector’s focus on him as part of a concerted attempt by forces “who seek to return South Africa to the dark path of lawlessness, corruption and securitisation, and away from our journey to accountability and constitutionalism”.
Gordhan blames the EFF in particular for seeking to muddy the reputational waters around him, and questions Mkhwebane’s apparently “unquestioning” acceptance of the party’s allegations.
“I reject this campaign and will continue to repeat the truth as many times as [is] necessary until it is clear what the facts are: There was no ‘rogue unit’ at SARS,” the court papers state, underlining the final clause for emphasis.
The Public Protector report that Gordhan wants set aside implicated the minister in six matters of misconduct and unlawful activity.
Four of the upheld complaints relate to the establishment and operations of the so-called SARS rogue unit. One relates to the appointment of deputy SARS commissioner Ivan Pillay, and one is in reference to Gordhan “deliberately misleading the National Assembly” by failing to disclose that a member of the Gupta family had been present at a meeting Gordhan attended in 2010.
Gordhan’s lawyers argue that Mkhwebane should not even have investigated the complaints in question because the Public Protector Act stipulates that the Public Protector should not consider complaints more than two years after the event at issue unless there are “special circumstances” for doing so.
They contend that Mkhwebane has failed to lay out any compelling reasons for deviating from this stipulation in the Gordhan matters — “and the review should succeed on this basis alone”.
But the application also proceeds to dispute Mkhwebane’s interpretation of the facts relating to the six complaints she investigated.
Complaint 1: Gordhan deliberately misled the National Assembly in 2016 by not disclosing he had attended a meeting in 2010 at which a Gupta family member was present.
Gordhan’s defence is that when he was asked in Parliament in 2016 whether he had ever attended a meeting with the Guptas, he forgot — when answering — that he had held a meeting with Indian investor Anil Ambani at which a Gupta brother may have been present. He was only subsequently reminded that this was the case by his chief of staff Dodo Mogajane when Gordhan was preparing his testimony for the Zondo Commission in 2018.
Gordhan accordingly disclosed the meeting to the Zondo Commission, which he says is evidence that he had no desire to be anything other than “entirely open and honest” about his Gupta interactions.
Mkhwebane’s report does not buy this argument. The Public Protector wrote in her report that Gordhan’s claim to have forgotten the meeting “does not seem like a bona fide defence”.
Gordhan says this conclusion is “baseless and scurrilous” because it is “not based on any contrary evidence or on a rational and fair assessment of the actual evidence whatsoever”.
Complaints 2-5: While SARS commissioner, Gordhan unlawfully established an intelligence unit which failed to follow proper procurement processes when buying intelligence equipment; failed to follow recruitment processes to staff the unit; and carried out irregular and unlawful operations.
The fact that Mkhwebane upheld these complaints, say Gordhan’s lawyers, is “the result of a failure to investigate properly that is so unreasonable that no reasonable person could have so conducted an investigation”.
As a result, the findings have to be “the result of bias or ulterior motive or purpose”.
With almost palpable frustration, the court papers lay out Gordhan’s endlessly rehashed arguments against the “rogue unit” narrative.
The establishment of the unit was legal and indeed necessary in order to enhance SARS’ intelligence-gathering capacity in order to combat tax crime, they contend. SARS had the ability to establish such a unit in terms of the SARS Act.
Gordhan’s lawyers say that Mkhwebane seems to have relied “heavily” for her findings on the subsequently discredited report compiled by the Sikhakhane panel. This reliance is “wholly misplaced and erroneous”.
The application goes on to question why Mkhwebane seems to have placed such stock in the Sikhakhane report — while ignoring the conflicting findings of the Nugent Commission, the subsequent retraction of the KPMG report on the matter and the subsequent acknowledgement by SARS advisory board chair Judge Frank Kroon that there was no reason to believe that the unit was unlawfully established.
“The Public Protector does not engage at all with any of the views which are contrary to those expressed in the complaints and her own,” the application concludes.
It further questions how Mkhwebane was able to find that the SARS unit unlawfully procured intelligence equipment when, by Mkhwebane’s own admission, SARS failed to provide her with the relevant records of procurement.
Gordhan told the Public Protector he was not involved in the recruitment of staff for the unit, since this task fell to the management of the unit. Much like Mkhwebane’s finding with regards to Gordhan’s Gupta answer, she simply found this denial “improbable”.
Once again, the application states, “this is a mere assertion without any evidentiary underpinning at all”.
When it comes to the alleged unlawful conduct of members of the SARS unit, Gordhan states that he “played no part in and did not have any knowledge of any of the alleged unlawful operations”, but does not consider it necessary to elaborate further as Mkhwebane did not specifically pinpoint him in these activities.
Complaint 6: The appointment of Ivan Pillay as deputy commissioner of SARS was irregular and unlawful because Pillay was unqualified for the role.
The court papers describe this complaint, which was again upheld by Mkhwebane, as “an appalling slur on the reputation of a highly skilled and conscientious public servant” who is owed an apology.
Mkhwebane seized on the fact that Pillay has no tertiary education as evidence that he was not fit for the role. Gordhan counters that there are no specific qualifications necessary for the position, and that although Pillay holds no degree — “like many other South Africans who dedicated their lives to the struggle against apartheid” — he had abundant experience and considerable success as a public servant behind him when appointed.
Having dealt with the complaints upheld by Mkhwebane, Gordhan’s application concludes that there is “no basis to make any adverse findings against me”, and therefore no reason for the president to take the disciplinary action against him recommended by the Public Protector.
In addition, it argues that Mkhwebane’s instruction to the police to investigate Gordhan’s “criminal conduct” is unlawful, because the Public Protector has no legal powers to direct that such an investigation commence.
Furthermore: “The Public Protector is biased, or at least subject to a reasonable perception of bias”. The application contends that there is no other plausible explanation for the production of a report so “wrong on the facts and wrong in law”.
Gordhan is not just seeking an interdict against the implementation of remedial action and the setting aside of the report. He is also asking the court to order Mkhwebane to “pay the costs of this review application personally and on a punitive scale”.
The application concludes: “The taxpayers of South Africa should not have to continue to fund her unlawful conduct.” DM