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5 things you need to know about the Public Protector's investigation into Minister Pravin Gordhan

Nov 12 2018 15:56
Lameez Omarjee, Fin24

Public Enterprises Minister Pravin Gordhan has been subpoenaed to appear before the Public Protector Busisiwe Mkhwebane on Wednesday, November 14.

Gordhan will respond to the Public Protector's enquiries on the matter relating to the granting of early retirement for Ivan Pillay, former deputy commissioner of the South African Revenue Service (SARS).

Here's what we know so far:

What is it about?

On Sunday the minister's attorneys Malatji Kanyane Incorporated said in a statement that the investigation relates to allegations regarding the granting of early retirement of Ivan Pillay, and his subsequent re-employment as SARS deputy commissioner in 2010. Gordhan was finance minister at the time.

These are the same allegations the Hawks investigated, and are related to the fraud charges the National Prosecuting Authority (NPA) leveled against the minister on October 11, 2016.

Bloomberg previously reported that Pillay's early retirement had allegedly resulted in R1.1m in wasteful expenditure.

Later that month, former NPA head Shaun Abrahams withdrew the fraud charges against Gordhan, as it was found that Gordhan and others did not intend to act unlawfully.

Gordhan's attorney Tebogo Malatji's written submissions had shown that the criminal charges could not be "sustained on any factual or legal basis".

The Public Protector explained in a statement on Monday that this is a preliminary investigation - to determine the merits of complaints. This is an opportunity for Gordhan to respond to the allegations or the complaint, received in 2016.

How is it different to the Hawks investigation?

Public Protector spokesperson Oupa Segalwe told Fin24 that the investigation is different to that of the Hawks, in that the Hawks conduct criminal investigations. This is an investigation into maladministration.

Similarly in the Public Protector's statement, Mkhwebane clarified her powers. She explained that the fact that the criminal case into similar matters has been withdrawn does not stop her from conducting her own investigation as the Public Protector's mandate is to investigate any conduct which is alleged or suspected to result in maladministration, prejudice, any impropriety or abuse of power. 

"Not all improper conduct or maladministration constitutes a criminal conduct or offence," she clarified.

According to Gordhan's lawyers – the complaint lodged in November 2016 – alleges that Gordhan's approval of Pillay's early retirement amounted to "maladministration, dishonest and improper conduct by the Minister in dealing with public funds".

Why was Gordhan subpoenaed?

Gordhan is to appear before the Public Protector on Wednesday November 14, his attorneys stated.

The Public Protector's office on Friday tweeted that Mkhwebane had written to Gordhan on the matter, four times between February 2018 and July 2018.

The Public Protector had first written to Malatji Kanyane on February 5. According to the attorneys – they had responded on February 16, 2018, requesting evidence of "alleged dishonesty and impropriety" by Gordhan. The Public Protector had written back to the lawyers on February 28, 2018 indicating it is a preliminary investigation.

"In the said letter, the Public Protector indicated that her office has no evidence implicating Minister Gordhan of any wrongdoing," Gordhan's lawyers stated.

Subsequently investigators had contacted Malatji Kanyane to get a response to the initial letter sent by the Public Protector on February 5. The attorneys sought the minister's instructions, as they still had not received the particulars requested from the Public Protector.

"In the intervening period, the Office of the Public Protector proceeded to issue a subpoena on 01 October 2018 for the Minister to appear before her on 14 November 2018.

"Any communication that suggests that Minister Gordhan has not responded to the Public Protector’s enquiries between February and July 2018 – or that 'responses were not forthcoming' - is simply deceptive, false and incorrect," Malatji Kanyane said in their statement.

On the issue of evidence, the Public Protector has said that the office is empowered to investigate any improper conduct resulting in impropriety or prejudice, and includes allegations from media reports. "Members of the public and political parties regularly ask the Public Protector to investigate purely on the basis of the news reports. In such instances, the Public Protector is not provided with evidence supporting the allegations but this never stops her from investigating," the statement read.

How does it fit with the State Capture Inquiry?

It was revealed that Gordhan had met with Ajay Gupta, in a meeting arranged by former president Jacob Zuma. This was revealed in Gordhan's written submission to the Zondo Commission of Inquiry, which is scheduled to be heard on Thursday.

In the 68-page sworn statement which was leaked to the media - Gordhan addresses allegations related to Pillay's early retirement and said the charges brought against him were an attempt to force him to resign as finance minister, at the time.

In her statement, the Public protector clarifies that Gordhan's appearance before her was not meant to coincide with his appearance before the State Capture Inquiry.

"It has also been insinuated that the subpoena was timed to coincide with the Minister’s appearance before the Zondo Commission of Inquiry. This is false.

"When responding to the subpoena on 22 October 2018, the Minister, through his attorney, revealed to the Public Protector that he was scheduled to appear before the Zondo Commission of Inquiry on 15 November 2018. This was not known to the Public Protector when she served the subpoena on the Minister twenty (20) days earlier," the Public Protector's statement read.

Meanwhile, the Economic Freedom Fighters (EFF) have lodged a separate complaint with the Public Protector to investigate Gordhan for violating the executives ethics codes, over meetings with members of the Gupta family.

What happens next?

This is part of an ongoing investigation and a report will only be finalised once it is completed, Segalwe told Fin24.

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