Mkhwebane vs Gordhan: High court reserves judgment

Public Enterprises Minister Pravin Gordhan’s legal team says that the Public Protector (PP), Advocate Busisiwe Mkhwebane’s, submissions – on the application to review and set aside her report into the “Pillay Pension Saga” – misconceived the purpose of the application.

“This is to emphasise that this is a review of the PP’s findings against Gordhan, it is not a review of his decision,” advocate Wim Trengove SC on behalf of Gordhan told the court on Friday.

“Her findings are that he is guilty of improper conduct and the reason she gives is that his decision was made [with] 6 errors of law. The question [before the court] is whether these findings are irrational or not,” he added.

This comes after Gordhan brought an application seeking the High Court to review and set aside the PP’s report 24 of 2019/20 which deals with the early retirement of former deputy commissioner at SARS, Ivan Pillay, and his subsequent retention at SARS.

The matter has been in the North Gauteng High Court since Wednesday.

Report

The 89-page report found – among other things – that the allegation that the then Finance Minister, Pravin Gordhan irregularly approved the early retirement of former deputy commissioner at SARS, Ivan Pillay with full retirement benefits and his subsequent retention at SARS is substantiated.

In the report’s findings, Mkhwebane noted six errors of law made by Gordhan that led to her conclusion that Gordhan was guilty of improper conduct.

“The issue before the court is whether the PP’s finding of misconduct is a rational finding. For that purpose you look at her reasons for that conclusion. Her reason [is] that he made 6 errors of law.

Error

“That is the issue before the court, whether the PP rationally came to this conclusion,” Trengove reiterated.

Trengove had told the court on Wednesday that a mere error of law does not equate to improper conduct.

Advocate Dali Mpofu SC on behalf of Mkhwebane further clarified the findings in response to Trengove’s reply.

“I just want it to put it plainly to this court that the PP has not find Gordhan guilty of misconduct, she merely found him guilty of improper conduct,” he explained.

The High Court previously heard various submissions – in the 77-page Heads of Arguments – from the PP which include but are not limited to; a counter application to deem the applicants in the matter in contempt of court as well as the debunking of the expert advise/process leading up to Gordhan’s decision.

The court further heard submissions from the PP on the question of whether retirement was the intention following the subsequent retention of Pillay at SARS on fixed term contract. Judgment was reserved.

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