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What’s the murky truth behind the Gordhan subpoena, Mkhwebane?


In real life, Professor Balthazar is one of South Africa’s foremost legal minds. He chooses to remain anonymous, so it doesn’t interfere with his daily duties.

Minister of Public Enterprises Pravin Gordhan would surely have expected, after the election of Cyril Ramaphosa as president, that he would no longer be the subject of Zupta-inspired attacks. Such is the strange nature of South African politics that the person who became the focal point of the campaign against State Capture now finds himself once more the target of political attack.

Let us leave the EFF aside for the moment and concentrate on the Public Protector, Busisiwe Mkhwebane. It is no exaggeration to say that to date her tenure has been calamitous. In particular her ill-advised intervention into the ABSA lifeboat saga, in which she went so far as to recommend a change to the mandate of the Reserve Bank, is cause alone for a reconsideration of her remaining in office.

Recall that a full bench of the North Gauteng High Court found that Mkhwebane was biased and had failed to properly comprehend her office. For example, the court said the following of her:

The Public Protector did not conduct herself in a manner which should be expected from a person occupying the office of the Public Protector… She did not have regard thereto that her office requires her to be objective, honest and to deal with matters according to the law and that a higher standard is expected from her. She failed to explain her actions adequately.’’

As if that were not sufficient, the court ordered the Public Protector to personally pay 15% of the costs incurred by the applicant parties, as a mark of its displeasure of her conduct.

A few weeks ago the Public Protector was back in court, this time because the Democratic Alliance and the Council for the Advancement of the South African Constitution applied to have her report on the Vrede Dairy project in the Free State set aside.

Central to the case was the argument that the Public Protector did not include findings related to high-level politicians who played a central role in the project. Judgment in this case has been reserved and thus comment on the merits will have to be stayed. It is, however, of considerable interest that in this case the Public Protector complained that her lack of resources impeded her work, including in this case.

In the light thereof it is astounding that she has suddenly found the resources to warm up an old breakfast and subpoena Gordhan in respect of the case of Ivan Pillay, his retirement and re-employment. The mercifully retired NPA head Shaun Abrahams sought to employ this case in the fight against Gordhan but even he, unrenowned as he was for his forensic skill, withdrew the case.

From what has been claimed by Gordhan’s lawyers, the Public Protector has still not made clear the nature of the case that she wishes Gordhan to answer to nor why Abraham’s final reading of the legality of the Pillay payments was wrong.

So precious resources are being expended on yet another attack on Gordhan while a host of monumental cases of corruption are left alone, including those relating to the various state enterprises, local governments, and a range of Gupta-linked companies, to these bodies.

At the very least the public is entitled to a detailed justification from the Public Protector as to the basis of her priorities in a country where massive levels of corruption have been publicly exposed. Is she protecting the public interest or the interest of a segment of the public?

At the same time the EFF has posed a series of questions to Gordhan. That is their right as MPs, but there is one question which appears to be an assertion rather than a question. It relates to former SARS commissioner Tom Moyane.

It appears as if the point is taken that Gordhan has his own motive for ensuring the removal of Moyane. Again, let us leave aside the issue of whatever Gordhan might think.

The Nugent Commission has made damning findings against Moyane. From a welter of evidence it has found that the once formidable SARS was degraded under the Moyane tenure. In turn this caused significant shortfalls in revenue. Eventually this prompted an increase in VAT to plug the fiscal hole caused, in part, by the shortfall in tax revenue collected.

This then had serious implications for the poor, as VAT was increased and less money was available for services and infrastructure designed to benefit millions of poor people who continue to be disadvantaged. On what basis can it ever be argued that it is not rational to replace the SARS commissioner?

All of this shows the level of political contest in present-day South Africa. To move into more accountable and transparent waters, institutions such as the Public Protector and SARS need to be central to the propulsion of the country away from the murky waters of the past decade. DM


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