Busisiwe Mkhwebane on her way to court yet again

Public protector Busisiwe Mkhwebane is to defend another report in court as public enterprise minister Pravin Gordhan and former SA Revenue Service senior officials Ivan Pillay and Oupa Magashule lodge review applications.

This follows the release of Mkhwebane’s report on the early pension payout made to Pillay during Gordhan’s tenure as finance minister and Magashule’s as Sars commissioner.

The public protector found that Gordhan had acted improperly and has directed President Cyril Ramaphosa to take disciplinary action against Gordhan for violating the constitution when he approved the payout.

In her remedial action, Mkhwebane also ordered that the Sars commissioner set in motion steps to recover the money paid as actuarial deficit or penalty on behalf of Pillay by the revenue service to the Government Employee Pension Fund. Gordhan, Pillay, and Magashule said they would immediately take the report on review in court.

Mkhwebane has received criticism for her work and is facing another attempt in parliament to remove her from office. Less than a week ago the high court in Pretoria reviewed and set aside her report on the Gupta-linked Vrede dairy farm project and declared it unconstitutional and invalid.

The court further declared that in investigating and reporting on the matter, Mkhwebane had failed in her duties under the Public Protector Act and the constitution.

Mkhwebane said she will appeal against the judgment. She said she was still deciding whether to appeal against it in the high court or approach the Constitutional Court for direct access.

This is not the first time her work has been called into question. Her report into the apartheid-era loan the SA Reserve Bank gave to Bankorp, which is now part of Absa, was also reviewed and set aside by the same court, and it was found that she did not understand her job.

On the probability that her report on Pillay’s pension payout would be challenged in court, Mkhwebane said on Friday: “We will try our level best to defend ourselves.”

Amid allegations of a witch-hunt, the timing of Mkhwebane’s report has also been questioned. It comes ahead of Ramaphosa’s announcement of his new cabinet, which Gordhan is expected to be a key part of.

Gordhan’s lawyer Tebogo Malatji said Mkhwebane had issued a notice in terms of Section 7(9) of the Public Protector Act, to respond to various grounds on which she intended to make adverse findings against the minister. A response was required within 14 days.

He said Gordhan submitted his response on May 22 and two days later the minister received a letter from Mkhwebane advising him that she had declined his request that he be given a further opportunity to make submissions.

“Minister Gordhan takes issue with both the haste and the timing of the release of her report,” his lawyer said.

The National Prosecuting Authority (NPA) withdrew charges linked to the pension payout against Gordhan, Pillay, and Magashule in October 2016. Mkhwebane received a complaint about the matter in November 2016 and only acted on it in February 2018.

Pillay’s lawyer, Bernard Hotz, said his client’s pension payout had been subjected to several processes and investigations that had found nothing untoward with it.

“All of this information, and more, was presented to the public protector in the course of her investigation. The public protector has, however, arrived at findings which are entirely at odds with this weighty body of legal opinion,” Hotz said.

Magashule’s lawyer, Pieter Viljoen, said his client had submitted his response to Mkhwebane on May 21, and three days later she released her report.

“The indecent haste with which the public protector then made public her findings on May 24 is in our client’s view an indication of the fact that little and/or no regard was had to the evidence and supplementary submissions,” he said.

Gordhan, Pillay and Magashule's lawyers have said Mkhwebane’s findings were factually and legally flawed.

quintalg@businesslive.co.za