Busisiwe Mkhwebane accuses president of failing the constitution

Public Protector Busisiwe Mkhwebane has accused President Cyril Ramaphosa of failing to uphold the constitution, saying he is in breach of the supreme law by not complying with the anticorruption watchdog’s remedial action from a probe involving public enterprises minister Pravin Gordhan.

In June, Mkhwebane said her investigation had found that Gordhan wrongfully approved the early retirement of the then deputy commissioner of the SA Revenue Service (Sars), Ivan Pillay, in 2010. The investigation report further made legally binding recommendations to Ramaphosa to take disciplinary action against Gordhan.

However, since Gordhan has challenged Mkhwebane’s findings in court, Ramaphosa has refrained from taking any action against the member of his executive team.

"The president’s refusal to act on my remedial action is a failure on the president’s part to uphold the constitution," Mkhwebane said in a letter sent to Ramaphosa on June 26 and seen by Business Day.

"I can deduce … that the decision not to implement was a foregone conclusion as it is merely based on Mr Gordhan’s assertions, and nothing else."

Ramaphosa’s office, however, said that he can only take decisions on Gordhan’s fate once the minister’s legal challenge to Mkhwebane’s report, which the minister maintains

is politically motivated and "riddled with reviewable errors", is finalised.

The report relates to the approval by Gordhan — who was finance minister at the time — for Pillay to be granted early retirement and for Sars to cover the cost of the resulting actuarial shortfall. Gordhan also approved a request to then keep Pillay on at Sars on a fixed-term contract. Mkhwebane found Gordhan guilty of improper conduct and urged the head of the tax agency to recover the money paid out and to clarify its early retirement and staff retention procedures.

The presidency said on Sunday that Ramaphosa had provided Mkhwebane with the

implementation plan she ordered him to submit to her office within 30 days of the release of her Sars report, in which she asked that the president detail how he would discipline Gordhan.

"We believe that our proposed course of action is appropriate in the circumstances and that any further decisions in this regard would be taken once Minister Gordhan’s review of the report is completed," presidency spokesperson Khusela Diko told Business Day.

However, Mkhwebane is adamant that Gordhan’s legal action does not block Ramaphosa from acting on her remedial action that he takes "appropriate disciplinary action".

"Contrary to the president’s advice that I should approach a court for compelling compliance, it is the president that should approach the court to interdict my remedial action," she said in the letter.

"Absent an order directing otherwise, my remedial action is binding and compliance thereto is not optional."

The standoff between the presidency and Mkhwebane comes as the public protector prepares to finalise her long-awaited investigation into whether Ramaphosa misled parliament over a R500,000 donation to his ANC election campaign by Gavin Watson, CEO of corruption-accused facilities management company Bosasa.

Mkhwebane is also investigating whether the convoluted way in which that payment was made amounted to money-laundering.

She has notified Ramaphosa that he has been implicated in her provisional investigation report. The presidency last week confirmed that Ramaphosa had filed a response to the findings made against him.

Mkhwebane is expected to file her response to Gordhan’s challenge to her Sars report in the coming days.

The minister denies any wrongdoing.