This column is based on one key assumption — that all in this country are equally subject to the rule of law.

Viewed within the context of the controversy surrounding the Public Protector’s report which orders the president to take steps to discipline the Minister of Public Enterprises for violating the Constitution in sanctioning the pension payout to Ivan Pillay when he retired from SARS, after which he was brought back into service on the basis of a temporary contract, this assumption is critical to understanding what is at stake.

It must follow from the underlying assumption that Pravin Gordhan, whatever his distinguished public service record, is subject to the rule of law as is any resident of the country. If he has violated the Constitution, he must be sanctioned, if the rule of law is to be implemented without fear or favour. But the Public Protector is also not above the law, as has been shown in a number of judgments which have made very critical findings against her conduct.

Indeed, thanks to the Constitutional Court judgment in the Nkandla case, the Public Protector has been elevated to the most powerful office in the constitutional scheme.

Unlike a judgment from the High Court, the decisions of the Public Protector are not subject to appeal, but only to a review. The widening scope of review notwithstanding, that means that a court can only test the rationality (or reasonableness) of the Public Protector’s report, but cannot substitute its own approach to the facts, as is the case with an appeal to a higher court.

In short a judgment, much praised when the Public Protector was Thuli Modonsela, has afforded the Public Protector the widest form of power that to some may now appear to be too deferential to the office; after all how, it may be asked, can the Public Protector be subject to less stringent a test than is the case with a High Court, the orders of which are subject to the wider form of appeal.

The wide scope that the Public Protector has, thanks to the Nkandla judgment, imposes significant duties of care upon her office. In her report on the Minister of Public Enterprises, she has gone to great lengths, subsequent to the publication thereof, to justify her approach by claiming that her role is to ensure, via her investigations, that fiscal stability is attained.

Given her record in the Vrede dairy case, for example, where her approach was excoriated by the High Court, this is a curious approach as in that case she showed very little enthusiasm to investigate beyond the restricted confines of her predecessor’s preliminary report, after which the Gupta leaks exposed a series of disturbing allegations of corruption. Agreed that the Public Protector is not required to follow these leaks, but there must be an obligation to conduct her own investigation to test so serious a set of allegations.

It must be borne in mind that the entire amount at stake in the Pillay case is slightly more than R1-million, whereas the Vrede dairy case alone involves billions that were supposed to help poor South Africans. And that leaves aside the plethora of Gupta and Bosasa allegations. It is surely no excuse to claim that the Zondo commission is investigating these cases; that does not excuse the Public Protector from investigating these troubling issues, particularly to ensure that corruption of public funds is curbed and fiscal stability is not compromised thereby.

Leaving aside the intricacies of pension fund law, there is a further troubling aspect about the report on Gordhan. If it is shown that Gordhan requested a series of expert opinions and then took some months to consider the Pillay case, the obvious question arises — how can such conduct constitute a breach of his constitutional duties?

If so, it would follow that every time the president or one of his ministers takes independent, expert legal advice, acts thereon, which act has financial consequences and then it is shown that the series of advice taken is wrong in law, the president or the minister would, on a parity of reasoning, be vulnerable to a similar finding.

Given the review instituted by Gordhan, the public will soon find out whether this was the case, and, if so, whether the report of the Public Protector was rational.

If the court finds for the Public Protector then it will hold very serious consequences for Gordhan. The converse might hold equally serious consequences for the Public Protector.

Given the previous findings against her, if Mr Gordhan wins his review, then the case against the current Public Protector will be overwhelming; that is that she should be removed by Parliament. DM