Pillay’s pension: Another court defeat for Mkhwebane

Public protector Busisiwe Mkhwebane suffered another court defeat on Wednesday when the high court in Pretoria dismissed her application for leave to appeal its December ruling setting aside her report on Public Enterprises Minister Pravin Gordhan when he was finance minister.

A full bench found that there was no reasonable prospect that another court would reach a different conclusion regarding Gordhan’s legal challenge to the report.

In December, the court concluded that Mkhwebane had made a material error of law when she decided that Gordhan’s approval in 2010, during his tenure as finance minister, of the early retirement of South African Revenue Service (Sars) deputy commissioner Ivan Pillay was improper.

It held that her report, which recommended that President Cyril Ramaphosa take disciplinary action against Gordhan, was therefore irrational and could not stand.

Mkhwebane sought leave to appeal the judgment as a whole but the court dismissed this with costs.


The court also dismissed an application for leave to cross-appeal by Gordhan and Pillay to challenge the judgment in as far as the court a quo had struck down parts of his founding affidavit because the tone was condescending and combative towards the public protector.

Last month advocate Dali Mpofu, who appeared for Mkhwebane, referred to this when he cross-examined Gordhan on behalf of former Sars commissioner Tom Moyane at the Zondo commission into state capture.

But the court held that the issues raised both in the application for leave to appeal and in theirs to cross-appeal were fully covered and considered in the December judgment and hence there was no prospect either would succeed.

“We are satisfied that all the issues in the application for leave to appeal and cross-appeal were fully covered and considered in the judgment. We are therefore of the view that there are no reasonable prospects of success of the appeal … Therefore, the application for leave to appeal and cross-appeal the judgment fall to be dismissed,” the court ruled. 

Mkhwebane has lost several court challenges, with damning findings being made about her competence. Her fitness to hold office is under scrutiny by parliament after the ANC voted with the Democratic Alliance to establish a committee to initiate an impeachment process.

The initial article on this ruling incorrectly cited this as an application for leave to appeal a court judgment striking down the public protector’s report implicating the minister in the establishment of an illicit intelligence-gathering unit in Sars. We apologise for the error.

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Lizeka Tandwa
Lizeka Tandwa
Lizeka Tandwa is a political journalist with a keen interest in local government.

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