Court asked to set aside PP's report – Pravin Gordhan

Minister also wants court to declare that Mkhwebane failed to comply with her duties

Statement by Malatji Kanyane incorporated on behalf of Mr Pravin Gordhan

28 May 2019  

We confirm that a review application was lodged this morning with the Pretoria High Court on behalf of our client, Mr Pravin Gordhan, to review and set aside the Report by the Public Protector that was issued on Friday last week.

As per the Notice of Motion that was lodged, the court is asked to:

- Review and set aside, and declare unconstitutional, unlawful, irrational and invalid, the Public Protector’s Report No 24 of 2019/20, including the findings and her proposed remedial action;

- Declare that the Public Protector failed to comply with her duties under sections 6 and 7 of the Public Protector Act and section 182 of the Constitution;

- Review and set aside, and declare unconstitutional, unlawful, irrational and invalid, the Public Protector’s decision to investigate a complaint older that two years without compelling reasons to do, as per section 6(9) of the Public Protector Act; and

- Grant a personal cost order against Adv. Busisiwe Mkhwebane.

The Respondents cited are the Office of the Public Protector, Advocate Busisiwe Mkhwabane in her personal capacity, the President of the Republic, Messrs Ivan Pillay and Oupa Magashula, and the Commissioner of the South African Revenue Service (SARS).

It will be argued that the Public Protector erred in making adverse findings against Mr Gordhan despite clear evidence provided to her that Mr Gordhan acted lawfully, honestly and in good faith at all times. He considered the request by SARS for Mr Pillay’s 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.

As Mr Gordhan contends in his Founding Affidavit (a copy of which is attached):

In assuming jurisdiction over the complaint in the circumstances here, conducting her investigation in the manner set out below, making findings contained in paragraph 6 of the Report, and imposing the remedial action set out in paragraphs 7 and 8 of the Report, the Public Protector acted in a manner that was unconstitutional, unlawful, improper and invalid.”

The Grounds of Review

The review is brought on several grounds, set out in the Founding Affidavit at length.  These include:

- That there are no “special circumstances” here to justify any exercise of the Public Protector’s jurisdiction over this complaint. 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.

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

- The issue of Mr Pillay’s early retirement also has been the subject of scrutiny by the law enforcement agencies of the Republic – and the former National Director of Public Prosecutions, Adv Shaun Abrahams, withdrew the charges against Mr Gordhan that were investigated and instituted, on the same set of allegations.

- The fact that these agencies considered the very same facts and legal issue is a relevant consideration in deciding whether to entertain the complaint.  The Public Protector Report, and now the need for these proceedings, wastes further public resources on the same issue.

- The Public Protector erred in her application of the applicable law relating to the approval of Mr Pillay’s early retirement. In brief, Mr Pillay was entitled to retire from his permanent employment at SARS since he was over age 55, and would be required to retire at age 65.

- On request, the relevant executive authority could approve a request to retire before age 60. The employee is then deemed by law to have retired at age 60. The Government Employee Pension Fund Law and Rules then permit the payment by the government and/or the employer of the actuarial shortfall that arises in those circumstances. That is what occurred here. The Public Protector misapplies this law to the relevant facts.

- The Public Protector also erred in making adverse findings against Mr Gordhan where the evidence is clear that he acted lawfully, honestly and in good faith at all times.  He considered the request by SARS for Mr Pillay’s early retirement for three months.  He took the advice of at least six people with competence, expertise and experience in these technical pension issues.  He relied on that best available advice.  All of the people consulted, advised that it was competent, lawful and appropriate to approve the request. There was not a single dissenting voice. 

- The highwater 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.

- The Public Protector also erred in finding that Mr Pillay did not in fact retire.  It is, however, common cause that his permanent employment with SARS terminated.  He then entered into a fixed-term employment contract.  This entitles him to receive his pension.  It is also a common occurrence.

- The Public Protector denied Mr Gordhan, and the other implicated persons, the opportunity to be heard on any contemplated remedial action.  This was unfair, especially given the grave finding she makes that there was a constitutional violation.  The first time Mr Gordhan was aware that she intended to make such a finding was when the Report was released.

The Public Protector’s Competence

The competence and the conduct of the Public Protector will also be challenged. In this regard, Mr Gordhan affidavit argues:

Unfortunately, and in stark contrast, [to her predecessor, Adv. Thuli Madonsela] Adv. Mkhwebane, has had four of her reports overturned or her process challenged in the Courts in judgments that are scathing of her comprehension of her constitutional role, grasp of the law and ability to act without fear, favour or prejudice…

All of these cases, of course, do not determine the outcome of this review application, though they are relevant since I believe that they show an emerging and consistent pattern of disregard for the constitutional mandate of the Office of the Public Protector by its current occupant and a stunning incompetence, irrationality and negligence on her part in the performance of her duties. This pattern is also relevant to the costs order sought in this application. These findings [by respective courts] also are of significance for another reason – because they demonstrate the irrationality of her findings and remedial action.”

The Public Protector’s Timing

In his Founding Affidavit, Mr. Gordhan also takes issue with the timing of the release of the Public Protector’s report, for two reasons:

- It was released on Friday 24 May 2019, a mere two days after Mr Gordhan made submissions on her draft report, on Wednesday 22 May 2019. On Thursday 23 May 2019, the Public Protector refused Mr Gordhan the opportunity to make submissions regarding any remedial action and confirmed that she was releasing the Report the following day. The Report shows no sign of Mr Gordhan’s submissions having been meaningfully considered.

- Mr Gordhan further contends that:

I can only conclude that the rush to complete and issue the Report within two days of the receipt of my submissions, and those of other implicated persons, was informed by improper and irrelevant considerations, or an ulterior purpose or motive. By this I mean to refer to the Presidential inauguration of the third respondent, held on Saturday 25 May 2019 and the political context in which my political opponents have sought to use the complaint lodged with the Public Protector, and now her Report, to attack my integrity.”

Issued by Adrian Lackay on behalf of Minister Pravin Gordhan, 28 May 2019