Another klap for Busi

Public Protector Busisiwe Mkhwebane’s report into former SA Revenue Service (Sars) deputy commissioner Ivan Pillay’s early retirement has become the latest to be canned by the courts.

The High Court in Pretoria reviewed and set aside the report last week, saying it hadn’t dealt with the “cardinal issue” of whether there was sufficient reason for Pillay’s early retirement in the first place.

Instead, the report had centred on the package Pillay walked away with – and this was essentially just an operation of law.

In the report, the public protector found then finance minister Pravin Gordhan had unlawfully approved Pillay for early
retirement with full pension benefits in 2010.

She found that Pillay had, in fact, not retired because he had been reappointed to the same position in 2011.

She found Gordhan, now the public enterprises minister, was guilty of “improper conduct” and directed President Cyril Ramaphosa to take “appropriate disciplinary action” against him.

Gordhan and Pillay responded with an application to have the report reviewed and set aside and the case came before a full bench, comprising judges Elizabeth Kubushi, Mpostoli Twala and Norman Davis, in late September.

In terms of the Public Service Act, early retirement may only be granted “if sufficient reason exists for the retirement”. In court, Mkhwebane argued there was not sufficient reason in Pillay’s case.

The problem, the judges ruled, was that was not what the report said.

“In the report, the issue is not treated as a reason that affected the authority of Minister Gordhan to approve the early
retirement of Mr Pillay or that affected the lawfulness of the approval of Mr Pillay’s early retirement,” they said.

“It was not even mentioned as one of the findings of the public protector in the report… The high watermark … is actually the payout and/ or the entitlement of Mr Pillay to the full pension benefits.”

Pillay’s reappointment was also above board, they found.

While he technically returned to the same position after retiring, the judges last week highlighted contractual and operational changes, that Sars was no longer contributing towards his medical aid and he was no longer a member of the Government Employees Pension Fund (GEPF).

On a more foundational level, the court ruled Mkhwebane did not have jurisdiction to investigate in this case.

The Public Protector Act only allows her to investigate allegations dating back more than two years under special circumstances – and the judges found there were none.

They described Mkhwebane’s attempts to show special circumstances as “haphazard” and “an indication that she does not know
how to exercise her discretion in terms of this section”.

Mkhwebane did enjoy partial success with her bid to have sections of the Gordhan’s founding affidavit struck out.

Gordhan had described the timing of the release of the report – ahead of Ramaphosa’s inauguration – as suspicious, suggesting Mkhwebane had been pursuing him for political reasons and that she was unfit for office.

The court found he had “gone overboard”. While Mkhwebane was not immune to criticism, it had to be “constructive and backed by the necessary facts”.

But they dismissed her counter application to have Gordhan and Pillay held in contempt of the public protector for insulting her.

– bernadettew@citizen.co.za

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