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Public Enterprises Minister Pravin Gordhan has filed a scathing affidavit in the North Gauteng High Court saying Busisiwe Mkhwebane, the public protector, has revealed 'stunning incompetence, irrationality and negligence' in the performance of her duties.
He also accuses her of being part of a political campaign against him and the government’s efforts to eradicate corruption and roll back the effects of state capture and that the timing of adverse findings against him were made to influence the composition of Cabinet and constitutes remedial overreach.
Gordhan filed a review application in the North Gauteng High Court on Tuesday asking the court to set aside a report by Mkhwebane which found he acted improperly in granting early pension with full benefits to Ivan Pillay, a former deputy SARS commissioner in 2010. He also asks the court to set aside her jurisdiction to investigate the matter, to declare that she acted unconstitutionally and to make a punitive cost order against her.
He denies that he acted improperly in the granting of Pillay’s retirement and says he exercised "great care" before making the decision. He also consulted widely within SARS and National Treasury and followed legal advice by duly appointed and competent legal advisers.
In her findings Mkhwebane found that Gordhan did not have
the powers to grant Pillay retirement with full benefits, that it was granted
under the wrong statutes and that it constituted damages to the public purse.
She instructs President Cyril Ramaphosa to take disciplinary action against
Gordhan and SARS to recoup the pension pay out to Pillay. Both the president
and SARS must report back within 30 days.
Gordhan however goes full tilt at Mkhwebane in his founding affidavit, and besides setting out in chapter and verse what process was followed before Pillay was granted pension, he argues that Mkhwebane isn’t only incompetent at executing her functions but that her actions are politically motivated.
According to the minister, considered to be Ramaphosa’s closest ally in attempting to clean up the state, the timing of the report’s release indicates that there are political motives behind the report. "I can only conclude that the rush to complete and issue the report…was informed by improper and irrelevant considerations or an ulterior purpose or motive."
He believes the report was released the day before Ramaphosa’s inauguration to "attack" his integrity and to renew "the ongoing political campaign against me by proponents of 'state capture' and defenders of corruption".
"I believe that my political opponents, and those who are fighting back against the work underway to restore the integrity and stability of state institutions, good governance and to continue the eradication of corruption, wish to use the report and attack me and undermine my integrity and good name," Gordhan says in his affidavit.
The report and the subsequent reaction were an attempt to claim that he was "tainted" and unsuited to be reappointed to Cabinet.
Gordhan argues that Mkhwebane has shown an inability to
reflect on her own conduct and competency and that she has been castigated by
the court on four occasions, including the review of two reports (Absa and the
SA Reserve Bank as well as the Estina dairy matters), a interdict in the
release of another (into Gugile Nkwinti, a former Cabinet minister) and the DA
and Council for the Advancement of the South African Constitution against the
public protector.
In all these instances the courts slammed her conduct, motives and findings. "This track record of adverse findings against the office of the public protector and Mkhwebane specifically demonstrates, in my opinion, that she is unfit for the office that she holds and appears unable to lawfully, constitutionally and rationally exercise its powers."
