No special circumstances forced Mkhwebane to probe Gordhan, court hears

Public Protector Busisiwe Mkhwebane, left, and Public Enterprises Minister Pravin Gordhan, right.

The minister’s representative argues that the public protector cannot ‘entertain’ complaints relating to matters which are more than two years old, except under special circumstances.

Public Protector Busisiwe Mkhwebane has not shown any special circumstances to investigate the complaint against Public Enterprises Minister Pravin Gordhan, and the so-called Sars “rogue unit”, says his legal representative, Wim Trengove.

Gordhan has taken a report by the public protector on review, which found that he lied to Parliament in saying he had no interactions with the Gupta family and that he had established an illegal intelligence gathering unit – the “rogue unit”.

The matter was heard online on Thursday before Judges Selby Baqwa, Leonie Windell and Annali Basson.

Trengove argued that, according to the Public Protector Act, the public protector cannot “entertain” complaints relating to matters which are more than two years old, except under special circumstances.

If special circumstances existed, the public protector had the discretion to take on the complaint.

“You will see that the public protector was asked again and again what the special circumstances are that allowed her to entertain these complaints, all of which are much older than two years,” Trengove said.

Both complaints against Gordhan were more than two years old, however, Mkhwebane had not explained what special circumstances led to her investigation, Trengove added.

No suggestion Gordhan not directly involved in authorising unit

Trengove argued that while there were accusations that the unit misconducted itself, there was no suggestion that Gordhan authorised this or was complicit in this.

“As far as Minister Gordhan is concerned, the question is not whether the unit acted lawfully at all times, the core question is whether Minister Gordhan authorised an illegal unit.”

Memorandums regarding the establishment of the unit – including a memorandum submitted to the then finance minister Trevor Manuel, for approval of the establishment of the unit and another memorandum from Ivan Pillay to Johan van Loggerenberg – the establishment of the unit would have been on the basis of these memoranda which explain that the unit was established for “a perfectly lawful purpose”, for tax enforcement purposes, and would only employ lawful means to carry this out.

While Pillay would have reported to Gordhan as then commissioner of Sars, he would have done so based on these memos, Trengove said.

Mkhwebane has done harm to her office

Technicalities aside, Trengove addressed the public protector’s submissions which he said amounted to an attack on Gordhan for disrespecting and maligning her office, Trengove said.

He added that while the public protector’s office was one of the highest standing in the country and deserved respect and cooperation, “the current incumbent of that office confuses and conflates her person and her office”.

“Nobody has done more harm to the standing and the esteem of the office of the public protector than the current incumbent, and she has done so by serious abuses of power,” he charged.

“There have been abuses of power which have compelled her victims to seek redress against her and our courts have again and again held that she has been guilty of the most egregious conduct,” Trengove said. The case continues.

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