Mkhwebane denies allegations of bias against Gordhan

Public protector Busisiwe Mkhwebane has denied she posted a notice on Facebook inviting comment from public enterprises minister Pravin Gordhan as an implicated person before informing him and his attorneys. 

Mkhwebane was giving evidence at the section 194 inquiry into her fitness to hold office. 

In its judgment setting aside her report on allegations of misconduct at Sars and the existence of an illegal intelligence unit, the full bench of the Pretoria high court in December 2020 concluded the public protector was biased against Gordhan. 

One of the grounds for its finding was the manner in which the public protector interacted with Gordhan. 

“Not only did the public protector elect to not engage with minister Gordhan’s attorneys on record, the section 7(9) notice was publicly posted on YouTube before giving any notice to him and his attorneys,” the full bench said in its judgment. 

The section 7(9) notice encloses the public protector's preliminary findings to implicated people and gives them an opportunity to respond to the findings.  

Mkhwebane denied she posted the notice as alleged by the court. 

“It is so wrong to be blamed.  I issued a 7(9) report publicly. That has never happened.” 

Mkhwebane's advocate Dali Mpofu SC played a video clip of a media briefing on June 3 2019, where she informed the public about the status of a number of investigations she was conducting. 

In that briefing, Mkhwebane said there were allegations she was harassing Gordhan and explained there were a number of complaints lodged and she had approached the people complained about, including Gordhan, to get their side of the story. 

She also said there were still a number of interactions she would have with Gordhan.  

“I will be issuing a 7(9) notice relating to the Executive Members Ethics Act complaint relating to his meeting with the Guptas. When it comes to issue of the rogue unit, people have lost lives, people have been tainted that is still going to happen.

“I will be serving that notice today which is June 3 2019. I am ready to receive all the backlash, I am not targeting or harassing any minister,” Mkhwebane said at the time.

 Mkhwebane said on Friday the address in 2019 was to inform the public about her intention to issue the section 7(9) notice to Gordhan. 

“I was indicating there are other investigations.” 

Another finding of bias the full bench made was Mkhwebane’s “relentless pandering of the untruths of (Sars official) Mr (Ivan) Pillay’s  qualification”. 

Mkhwebane pointed out that the issue of Pillay’s qualification was not in her report in on the so-called Sars rogue unit, but from a separate report on Pillay’s pension payment and reinstatement. 

“There is the issue of mixing up investigations. When I met with Pillay, it was regarding the issue of the pension. That question was asked during the meeting for the Pillay investigation, not for this particular matter.” 

Mkhwebane said in that investigation, the response her office received from Sars was that it did not dispute that Pillay did not have a degree and matric certificate.  

Mkhwebane said on March 18 2019, Gordhan wrote in his response on the question of Pillay's qualifications that there was no qualification required for the appointment as deputy commissioner of Sars. 

In the full bench judgment, the court said at the time of the report, the public protector knew Pillay had a matric certificate.

Mpofu asked Mkhwebane whether Pillay had told her he had a matric certificate.  She said Pillay told her he did matric “at some high school”. 

Pillay did not give her his matric certificate.

The inquiry continues.

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