PARLIAMENTARY NOTEBOOK

EFF adulation of Public Protector radiates through Parliament as Gordhan files court challenge

By Marianne Merten 11 July 2019
Caption
The newly appointed Public Protector Advocate Busisiwe Mkhwebane during an interview on October 08, 2016 in Pretoria, South Africa. (Photo by Gallo Images / Sunday Times / Moeletsi Mabe)

The Public Protector’s request for additional funding has been perennial over the past decade. It’s never been supported. But what has changed is the political lie of the land — Busisiwe Mkhwebane received the unreserved adulation of the EFF on Wednesday, with her action against Public Enterprises Minister Pravin Gordhan writ large.

Maybe it was the solidarity of red. Public Protector Busisiwe Mkhwebane was draped in a deep red top with the odd fluffy tassel, while the EFF MPs sat opposite in their red overalls.

Maybe it was a coming together of purpose. The EFF has not minced its words over Public Enterprises Minister Pravin Gordhan. Its members walked out during his contribution to the June parliamentary debate on the State of the Nation Address, while the Public Protector has referred her report — that found Gordhan, as South African Revenue Service (SARS) boss in 2007, had unlawfully established the so-called rogue unit — to the SAPS and prosecution service for investigation of criminal charges.

In the typical snipe-and-run tactics of the EFF, its national spokesperson and MP Mbuyiseni Ndlozi turned on fellow MPs, from the DA to the ANC. He slated them for “abuse of power” for questioning the Protector over a multimillion-rand litigation budget, the quality of reports, and remedial action, given the number of court reviews, adopting an angry and defensive tone better suited to a media statement.

These Members of Parliament are motivated by constitutional delinquency. If you have a problem with the Public Protector, there’s a legal process. This is an abuse of process (by friends of Pravin Gordhan),” said Ndlozi, before turning to Mkhwebane: “Your service to the country is admirable, very admirable”.

That is typical EFF targeting of a personality, including former president Jacob Zuma, who was referred to as a “constitutional delinquent” after the March 2016 Nkandla Constitutional Court ruling that found he had violated his oath of office.

Fellow EFF MP Thilivhali Elphus Mulaudzi followed up:

It seems he (Gordhan) was running his own parallel structures that are tantamount to treason.”

Mkhwebane took it in her stride, saying she had sent her report on Gordhan to SAPS National Commissioner General Khehla Sitole and National Director of Public Prosecutions Shamila Batohi for the investigation of criminal charges.

In response to an earlier DA question, the Public Protector told MPs she had not yet appointed legal counsel in the matter as no one had taken her to court yet.

That legal action emerged later on Wednesday.

Gordhan’s lawyer Tebogo Malatji confirmed in a statement that “an urgent application… to suspend and interdict enforcement of the remedial orders” had been filed in court on several grounds, including that the Public Protector had failed to stipulate reasons why she investigated and reported on a matter that was more than two years old, that she “misunderstands the law to arrive at a pre-determined outcome” and “misapplies the provisions of the Constitution and applicable legislation when making adverse findings”.

There is no legal obstacle to SARS establishing an investigative unit to deal with the tax implications of organised crime and illicit trade like cigarette smuggling. In fact, this capacity is being re-established thanks to the findings and recommendations of the Nugent Commission of Inquiry,” said Malatji.

The aim is to review and set aside that report as unlawful, unconstitutional and irrational – while also asking the court to make a personal cost order against Mkhwebane.

This comes as the Constitutional Court has yet to deliver its judgment in Mkhwebane’s appeal against the personal cost order imposed by a full bench of the North Gauteng High Court. In February 2018, the court declared invalid the ABSA Bankorp report that ordered the bank to repay R1.125-billion for the apartheid-era Bankorp bailout.

While Mkhwebane in court papers withdrew her instruction to Parliament to amend the Constitution to broaden the mandate of the South African Reserve Bank, the Reserve Bank and ABSA successfully took the report on the full review. However, Mkhwebane went on to appeal against the personal cost order, all the way to the Constitutional Court, which heard arguments in November 2018.

Coincidentally, this outstanding court action was among the key reasons Parliament’s justice committee, ahead of the May 2019 elections, deferred making a decision on Mkhwebane’s fitness for office.

In his affidavit on Wednesday, Gordhan said the interdict against this Public Protector report would be in the interests of justice because “I strongly doubt the bona fides of the Public Protector in investigating and issuing the report…” and that he’s being singled out given the Protector confirmed three ongoing investigations against him.

Instead of dealing with the pressing complaints of citizens, she is using the office for ulterior motives or the political motives of others…” was how Gordhan put it in his affidavit.

Mkhwebane made sure MPs would get her stance and views during Wednesday’s appearance over her office’s annual performance plan before Parliament’s justice committee, even as ANC MP Xola Nqola cautioned the committee that “other matters should be dealt with another day”. His peremptory remarks during the formal introductions proved pointless as Mkhwebane brought up those issues herself.

“…(R)ecent history has taught us never to assume that our powers are understood by all and sundry, most especially those we expect to be conversant – verse and chapter – with the constitutional and legislative framework regulating the work of the Public Protector,” said Mkhwebane before segueing to Mineral Resources and Energy Minister Gwede Mantashe’s statement that she was venturing into political territory, without mentioning him by name.

The member of the executive appeared to be under the impression we just woke up one morning and decided to pursue the subject of the investigation when in fact we do not target people. Instead, we received a complaint from a member of Parliament and merely did all that the law requires and empowers us to do.”

It was EFF deputy president and chief whip Floyd Shivambu’s complaint that got the investigation going. The EFF welcomed the report and finding against Gordhan in a statement on 5 July:

The Public Protector has confirmed our long-held view that Pravin Gordhan illegally engaged in espionage through a rogue unit within SARS. This unit spied on prominent people in South Africa, including the NPA. We believe that this illegally gathered information would then be used to pursue and settle political scores, through SARS itself, and other means.”

And the EFF pushed further, with its sights on another former politician it has decided to take exception to.

We also express concern on the complicity of the then-Minister of Finance, Trevor Manuel, under whom the unit was established. Manuel must be held accountable, as it is improbable that he did not know of the existence of such a unit.”

At the end of May, the EFF was fined R500,000 and ordered to apologise after the Johannesburg High Court ruled in favour of Manuel against the EFF for claiming a conflict of interest in the appointment of Edward Kieswetter as SARS boss. Manuel is on public record that he had excused himself from the interview panel. The EFF has indicated it is appealing against this order.

In Parliament on Wednesday, Mkhwebane blamed legal challenges to her reports as efforts “to save face”, while also trying to cast aspersions:

If we take decisions they do not like we are incompetent, biased or involved in political factionalism and not fit for office”, she told MPs, adding she found the Public Protector’s processes were “severely” misunderstood.

Mkhwebane has been sharply criticised by the courts for her conduct — the personal cost order is an indication of the dim view judges have taken — while her fitness for office will again come under scrutiny from Parliament’s justice committee.

For now, it’s only the EFF that has bouquets for Mkhwebane. How long that lasts will depend on the self-proclaimed Fighters’ political moves and machinations. DM

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