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Gordhan fights Mkhwebane's report: 'Public Protector has once again erred'

May 24 2019 18:30
Sesona Ngqakamba

Public Enterprises Minister Pravin Gordhan plans to institute immediate review proceedings against the Public Protector's report and findings, including the proposed remedial action, that she announced to the media on Friday.

This comes after Public Protector adv. Busisiwe Mkhwebane found Gordhan guilty of "improper conduct" over his approval of then-deputy SA Revenue Service (SARS) Commissioner Ivan Pillay's early retirement and payout.

Mkhwebane made the announcement at a media briefing on Friday afternoon. In her remedial findings, Mkhwebane urged President Cyril Ramaphosa to take appropriate disciplinary action against Gordhan for violating the Constitution.

She also said steps need to be taken to recover the money.

In a six-page statement that she read out and shared with the media, Mkhwebane said Gordhan should not have approved the early retirement with full pension benefits of Pillay in 2010 and his re-employment on a fixed term contract. Gordhan was finance minister at the time.

In a statement released on Friday evening, Gordhan said he was advised by his senior legal counsel that the Public Protector's findings, were "totally wrong both in fact and in law".

"In light of the most recent judgment in relation to the Vrede Dairy Project, Minister Gordhan is of the view that the Public Protector has once again erred in her findings and proposed remedial action," Gordhan's spokesperson Adrian Lackay said.

Lackay said the review proceedings would be instituted immediately.

He said during Gordhan's term as finance minister, and shortly before delivering his budget speech for 2016 in Parliament, he received 27 questions from the Hawks which related to, amongst other things, his approval of Pillay's retirement benefit.

"Minister Pravin Gordhan responded to the 27 questions extensively on March 30, 2016," reads the statement.

Lackay added that a few months later that year, Gordhan was criminally charged in relation to Pillay's early retirement.

"On October 31, 2016, the NPA withdrew the charges, two days before the date of the appearance. We can only deduce that the withdrawal of the charges was premised on the fact that the National Director of Public Prosecutions (NDPP), who appeared on national TV, accepted that the charges were not legally sustainable, based on our prior submissions."

"Two years later, on October 1, 2018, the Public Protector issued a subpoena that Gordhan must appear before her in relation to the very same charges that were withdrawn by the NDPP," said Lackay.

Earlier this month, Gordhan received a notice in terms of Section 7(9) of the Public Protector Act, to respond to various grounds on which the Public Protector intends to make adverse findings against him and a response was required within 14 days.

"On May 24, 2019, we received a letter from the Public Protector advising that she is declining Minister Gordhan's request that he be given a further opportunity to make submissions on appropriate remedial action. The Public Protector's Section 7(9) notice did not set out the proposed remedial action, hence the request.

"Minister Gordhan takes issue with both the haste and the timing of the release of her report. The complaint involves complex considerations of pension fund laws in as far they relate to public servants. It is doubtful whether due consideration was given to Minister Gordhan's submissions," said Lackay.

Meanwhile, Pillay has said he emphatically also disagrees with Mkhwebane's findings and believes they are reviewable "inasmuch as they are both factually and legally flawed".

In a statement released by his lawyer, Bernard Hotz from Werksmans Attorneys, Pillay said he would seek recourse in the courts.

"We are confident he will find justice there," Hotz said.

Pillay said he submitted a detailed sworn affidavit on Tuesday after receiving a notice from Mkhwebane on her findings.

He believed that Mkhwebane's findings were entirely at odds with a "weighty body of legal opinion" which was submitted to her.

Mkhwebane announced her findings earlier on Friday, a little under 48 hours from when Gordhan's response was submitted to her.

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