Johannesburg – Public Enterprises Minister Pravin Gordhan and Public Protector advocate Busisiwe Mkhwebane were back at the North Gauteng High Court on Wednesday.
This time it was over Gordhan’s approval of former acting SA Revenue Service (Sars) commission Ivan Pillay’s early retirement and later re-employment when he was still finance minister.
Gordhan’s senior counsel Wim Trengove told the court Mkhwebane’s decision was irrational, irregular and unlawful.
“That was an error of law and the error of law rendered her decision irrational,” Trengove said.
Gordhan asked the high court to declare that Mkhwebane’s investigation and finalisation of her report released in May last year failed to comply with the Public Protector Act and the Constitution.
He also sought to have it reviewed and set aside and declared unconstitutional, unlawful, irrational and invalid as her exercise jurisdiction over the complaint was on the basis that her decision was improperly exercised.
Gordhan wants the court to set aside Mkhwebane’s remedial action, which ordered President Cyril Ramaphosa to take disciplinary action against him, and that she be ordered to pay costs on a punitive scale in her personal capacity.
According to the minister, Mkhwebane’s report is fatally flawed and should be set aside as it is riddled with reviewable errors.
“It imposes incompetent, inappropriate and improper remedial action on the president, (former Sars commissioner Oupa) Magashula and the (current) commissioner,” Gordhan said.
Pillay took early retirement in 2010 to gain access to his pension fund in order to finance his children’s education.
The following year he was contracted on a fixed-term basis for five years.
Gordhan said Mkhwebane did not meaningfully consider nor reflect on the contents of his submissions to her before the report was released in unseemly and suspicious haste a mere 48 hours after delivering his submissions.
He believes the rush to release the report was informed by improper and irrelevant considerations or an ulterior purpose or motive.
Gordhan blames his political opponents for using the complaint to attack his integrity.
He said the public protector has once again demonstrated that she is unfit to hold office and continues to ignore her constitutional mandate, act without regard to the provisions of the law and seemingly in service to some other motive or agenda.
According to Gordhan, Mkhwebane’s conduct is an example of her long history of acting incompetently, unlawfully, unconstitutionally, unfairly and unjustifiably.
“The taxpayers of South Africa should not have to continue to fund her unlawful conduct,” said Gordhan in his motivation for a personal cost order on a punitive scale.
Mkhwebane dismissed Gordhan’s allegations about the alleged unnecessary haste as baseless.
The public protector asked the court in a counter application to strike out parts of Gordhan’s submission that she believes their tone and language is unnecessarily insulting, combative, rude and condescending towards her and also amounts to unlawful and prima facie criminal conduct.
She also said she could not and should not be placed in a position in which she has to fear personal adverse cost orders as this merely stifles her effectiveness in the performance of her constitutional obligations.