Masina, Yengeni slam Gordhan’s appointment, call on NEC to look into it

Ekurhuleni mayor Mzwandile Masina broke ranks and publicly criticised President Cyril Ramaphosa’s appointment of Pravin Gordhan as public enterprises minister.

Public Protector Busisiwe Mkhwebane on Friday directed Ramaphosa to “take appropriate disciplinary action” against Gordhan, finding that his approval of Ivan Pillay’s retirement amounted to “improper conduct” and was a violation of the constitution.

The commissioner of Sars at the time, Oupa Magashule, was directed to “set in motion steps to recover the money” paid by Sars on behalf of Pillay.

Sars was also expected to introduce “regulations, policies, and practices which are clear and unambiguous relating to early retirement and staff retention”.

The allegation that Gordhan irregularly approved early retirement for Pillay was “substantiated”, according to Mkhwebane’s report. Gordhan acted beyond his legal authority by approving Pillay’s retention, the report found.

Gordhan then took the report to court on review, arguing that the public protector had exceeded her powers by looking at an old case that had effectively prescribed.

He will ask the court for a declaratory order that Mkhwebane, who has had two reports set aside by the high court already, did not act in accordance with the Constitution or the Public Protector Act.

“The Public Protector Act prevents the public protector from entertaining a complaint reported more than two years from the occurrence of the incident or a matter concerned, unless there are ‘special circumstances’ present, which is a question within her discretion,” Gordhan’s attorney, Tebogo Malatji, said yesterday.

“Mr Pillay’s early retirement was approved on October 18, 2010, and there are no ‘special circumstances’ justifying the public protector entertaining the complaint almost a decade later.”

Malatji said his client had considered Pillay’s request for early retirement for three months.

“He took the advice of at least six people with competence, expertise and experience in pension law and public administration. Those consulted advised that it was competent, perfectly lawful and appropriate to approve the request.

“The high-water mark of the public protector’s findings is that she has a different, and mistaken, interpretation of the law. That does not, and cannot, constitute misconduct or a legal or constitutional contravention of any kind.”

Her report has since divided political parties and groups, with some calling on Gordhan to step down, while other criticised Mkhwebane for many things including releasing the report the day before Ramaphosa’s inauguration.

Following his appointment to Ramaphosa’s cabinet, Masina said the ANC NEC should look into it as a matter of urgency, a suggestion that was supported by Tony Yengeni.

Masina said: “The appointment of Pravin undermines the rule of law and makes mockery of our democracy. This is really out of order! I hope the NEC looks into this matter with urgency”, to which Yengeni responded: “Absolutely”.

Responding to those who said he would be apologising for his tweet soon, Masina said it would never happen, while Yengeni said not everyone in the ruling party was a “coward”.

“Pravin must go, he is not above the law,” he said.

Economic Freedom Fighters leader Julius Malema and his party have also criticised the appointment of Gordhan and likened it to showing the public protector’s office a middle finger.

“To appoint Pravin was to show a middle finger to the chapter 9 institution, to the constitution and to the democracy. All those who support the constitution and love democracy must stand against the appointment of Pravin,” he said.

(Compiled by Vhahangwele Nemakonde)

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