Public Protector pilloried in court

Ivan Pillay’s legal team says had the former deputy commissioner of the South African Revenue Services (Sars) not taken early retirement, it would have cost the tax service even more.

Last May, Public Protector Busisiwe Mkhwebane released a report on Pillay’s early retirement in 2010.

Her findings included that then finance minister Pravin Gordhan had approved it irregularly, and that Sars had as a result incurred more than R1.2 million in irregular expenditure.

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

Their application for Mkhwebane’s report to be reviewed and set aside kicked off yesterday.

In his heads of arguments, advocate Ross Hutton – for Pillay – said: “The simple fact of the matter is that Mr Pillay’s early retirement came at an additional cost to him and was, in its effect, to the financial benefit of Sars.”

He said when Pillay took early retirement at the age of 57, he became entitled to the pension benefits he would have received as a 60-year-old retiree.

These were “significantly lower than the benefits he would have received had he retired at the mandatory retirement age of 65”.

Hutton described the report as “bereft of any sound legal or factual basis” and said Mkhwebane’s bias against Pillay was “manifest”.

He added: “She approached her investigation with a preconceived notion that he was the beneficiary of a windfall that he was not entitled to.

“Her report is the product of a process of reverse engineering to arrive at the preconceived result that the public protector had in mind from the outset.”

Gordhan’s legal team argued the process he had embarked on before deciding on Pillay’s early retirement was “a model of executive decision making”.

Advocate Wim Trengove, for Gordhan, said: “If only our public officials were to be as careful and circumspect and transparent as the minister was in this case.”

Mkhwebane’s findings against Gordhan were based on “errors in law” which she said he had made.

Trengove yesterday denied there was anything unlawful about Gordhan’s decision, adding that even if he had made a legal error, it would have been “an innocent mistake”.

“No adverse findings can lawfully or properly be made against Minister Gordhan in circumstances where the evidence is clear he acted carefully, honestly and in good faith.

“His conduct was not abusive, unjustified, unfair, capricious, discourteous, improper or unduly delaying, in any way.”

Trengove argued Gordhan had in fact walked “the extra mile”, taking more than two months to reach his decision.

“The minister consulted, directly and indirectly, six experts. All six told him it would be perfectly lawful for him to approve the Pillay package.”

Advocate Dali Mpofu, for Mkhwebane, began addressing the court on Wednesday and argued Gordhan was guilty of criminal contempt for “insulting” the public protector.

– bernadettew@citizen.co.za

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