Gordhan says he’s vindicated after court sets aside Mkhwebane’s report

Former finance minister Pravin Gordhan has welcomed a judgment in which a full bench of the High Court in Pretoria set aside the Public Protector’s report on his role in the early retirement of former South African Revenue Services (SARS) deputy commissioner Ivan Pillay.

Last year, in May, the day before Cyril Ramaphosa was to be inaugurated as president after the national elections, Public Protector Busisiwe Mkhwebane released her report into the Pillay matter.

Her report found, among other things, that the allegation Gordhan irregularly approved the early retirement of Pillay with full retirement benefits, and his subsequent retention at SARS, was substantiated – and that Gordhan’s conduct was improper as envisaged by the Public Protector Act.

In her remedial action, she recommended the president take appropriate disciplinary action against Gordhan for failing to uphold the values and principles of public administration entrenched in Section 195 of the Constitution, and the duty conferred on members of Cabinet to act in accordance with the Constitution, in terms of Section 92(3)(a) of the Constitution.

Subsequently, the findings and recommendation formed much of the basis of the EFF’s insistence that Ramaphosa should fire Gordhan.

Gordhan brought a court application to review and set aside the report.

Delivered

On Thursday, Judges Elizabeth Kubushi, Mpostoli Twala and Norman Davis delivered their judgment.

The court found Mkhwebane “was wrong in law and that Minister Gordhan’s decision was perfectly lawful”.

“She was the one who made a mistake in law. That mistake in law is material and renders her findings irrational.

“There is nothing in the report that establishes that Minister Gordhan, as a member of Cabinet or otherwise, contravened any of the basic values and principles governing public administration or that he acted contrary to any of the duties of members of Cabinet provided for in the Constitution.

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“It is, therefore, irrational of the Public Protector to make a remedial order enjoining the president to take appropriate remedial action against Minister Gordhan based on the contravention of the Constitution.”

Gordhan’s attorney, Tebogo Malatji, said in a statement released on Sunday: “In our view, this judgment bolsters our client’s belief that he has been subjected to a series of unlawful and unfair investigations by the office of the Public Protector.”

However, the court granted Mkhwebane’s application to scrap from the record comments made in Gordhan’s affidavit relating to Mkhwebane’s motives.

“I believe the report was issued when it was issued, with the findings and remedial action it contained, so as to enable a renewal of an ongoing political campaign against me by proponents of ‘state capture’ and defenders of corruption,” read Gordhan’s affidavit.

The judgment dismissed this as “suspicions and mere speculation” and “spewing averments that are not supported by evidence”.

“The further allegations that she was politically motivated and that ulterior motives informed the report are also unsubstantiated. There is no evidence to substantiate the allegation, none at all,” the judgment reads.

“The applicants want to argue that Minister Gordhan provided inferential reasoning drawn from surrounding circumstances, for instance the haste with which the report was issued and timing, to support their argument that the Public Protector was politically motivated and, as such, the report was issued ‘so as to enable a renewal of the ongoing political campaign’ against Minister Gordhan by opponents of ‘state capture’ and defenders of corruption.

“We find, however, that such a proposition cannot pass muster in the circumstances of this application.”

Mkhwebane is expected to comment on the ruling after she has had time to study it.

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