The Public Protector has hit back at Public Enterprises Minister Pravin Gordhan, saying he must produce evidence that she is corrupt or engaged in “malfeasance” or she will trigger contempt proceedings against him.
Advocate Busisiwe Mkhwebane filed an affidavit in the Pretoria high court on Tuesday answering to Gordhan’s case which is seeking to set aside her report into the so called “rogue unit” at the South African Revenue Service (Sars).
In her report, Mkhwebane found, among other things, that the unit which was established by Sars in 2007 to gather intelligence in order to investigate the illicit economy, was unlawfully formed and conducted unauthorised intelligence operations. Gordhan wants the report to be reviewed and set aside — and in the meantime he has asked the court to urgently suspend the remedial action she has directed.
In his application, he accused Mkhwebane of allowing her office to be used as part of a political campaign to fight back against those seeking unity and renewal in South Africa.
In her response, Mkhwebane said Gordhan was using the courts as another platform to abuse her “in a vicious political campaign”. By so doing, Gordhan was hoping there would be a “gathering of the political storm for my removal,” Mkhwebane said.
She charged that Gordhan had not provided a “shred of evidence” for his allegations against her. “They are an unjustified attempt by an aggrieved party to evade accountability for his unlawful conduct,” she said.
“The Applicant must provide coherent evidence to support these self-evidently vicious allegations against the Office of the Public Protector, failing which I am obliged to trigger … contempt proceedings against the Applicant.”
Section 9 of the Public Protector Act prohibits people from insulting the public protector or doing anything that would, in a court of law, constitute contempt.
Mkhwebane said: “I can state unequivocally that the Office of the Public Protector has conducted its affairs with a fearlessness consonant with its constitutional mandate. I have loyally and with unwavering commitment, executed my constitutional mission without any regards to political or private interests. I am a constitutional being.”
In her affidavit, Mkhwebane said she would answer to Gordhan’s grounds of review at a later stage. However, the order that he wants urgently — to suspend her remedial action — should only be granted in exceptional circumstances. “Otherwise the true constitutional purpose of the Public Protector is subverted,” she added.
She further disputed that there was anything wrong with her remedial action.
In her report she directed a number of remedial steps including that the president should take disciplinary action against Gordhan and that the police should investigate the formation of the unit, which she said was in breach of Section 209 of the Constitution and section 3 of the National Strategic Intelligence Act.
Answering Gordhan’s assertion that breaching those sections did not disclose a criminal offense, Mkhwebane said she found this “astonishing”.
“If the Applicant’s approach was adopted, this means that any person who establishes an intelligence division other than the President would be acting in a manner that was consistent with the law.”
She said suspending the remedial action would be an unconstitutional restraint on the powers of the president and the other organs of state that she had directed to take remedial steps.