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28 May 2019 13:33
In papers filed on Tuesday, Gordhan has asked the high court in Pretoria to set aside and declare the report “unconstitutional, unlawful, irrational and invalid”. (Oupa Nkosi/M&G)
Pravin Gordhan has gone to court to set aside the Public Protector’s recent report which found he had acted improperly, saying it was politically motivated and “riddled with reviewable errors”.
The report, released by advocate Busisiwe Mkhwebane on Friday, related to the approval by Gordhan — who was finance minister at the time — of an early retirement for former South African Revenue Service (Sars) deputy commissioner Ivan Pillay and for Sars to cover the cost of the resulting actuarial shortfall. Gordhan further approved a request to then keep Pillay on at Sars on a fixed-term contract.
Mkhwebane directed President Cyril Ramaphosa to take disciplinary action against Gordhan and for Sars to recover money that was paid as an actuarial shortfall on Pillay’s behalf.
In papers filed on Tuesday, Gordhan has asked the high court in Pretoria to set aside and declare the report “unconstitutional, unlawful, irrational and invalid”.
He has also asked the court to order that Mkhwebane personally pay the costs “on a punitive scale”.
Gordhan said that, despite making submissions to Mkhwebane, the final report “reveals no sign of any meaningful consideration of or reflection on the contents of [his] submissions”.
“It was as if they were ‘going through the motions’ and intended to find against me … from the outset,” said Gordhan.
The evidence showed that when he approved the retirement, he acted “with extraordinary care”, after “seeking extensive advice from at least six people with expertise and knowledge of the applicable legal and regulatory provisions,” Gordhan said.
He suggested that the timing of the release of the report was politically motivated. “I say this because there was no reason for the unseemly haste with which the Report was issued on Friday, 24 May 2019, a mere 48 hours following the delivery of my submissions,” he said.
Gordhan said he could “only conclude” that the rush was informed by “improper and irrelevant considerations, or an ulterior purpose or motive”.
His political opponents had sought to use the complaint, and now her report, to attack his integrity. This was the only plausible explanation for why Mkhwebane would “effectively ignore” his submissions, he said.
“I believe the report was issued when it was issued, with the findings and remedial action it contained, so as to enable a renewal of the ongoing political campaign against me by proponents of ‘state capture’ and defenders of corruption”.
Gordhan said he placed his trust in the courts to determine that he did not contravene the law.
“Unlike other individuals who threaten legal action when they are accused of wrongdoing or even criminal conduct, yet do nothing to institute litigation, I have nothing to hide.”
He also said that, because the facts that gave rise to the complaint happened years ago, the way Mkhwebane decided to entertain the complaint was irrational and unlawful. “Section 6(9) provides that the Public Protector may not entertain a complaint more than two years after the event at issue, except where, in special circumstances, the Public Protector exercises her discretion to do so.”
There were no special circumstances in this complaint, he said.
The public protector’s spokesperson Oupa Segalwe said: “It is the right of any party that is aggrieved at the Public Protector’s findings and remedial action to approach the courts for recourse. The Public Protector respects and advocates for the respect of the rule of law and justice.”
Read the court papers below:
Gordhan Founding Affidavit by Mail and Guardian on Scribd
Gordhan Court Papers by Mail and Guardian on Scribd
Read more from Franny Rabkin
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