Mkhwebane to pay up, as court finds her ‘biased’ against Gordhan and Pillay

Public protector Busisiwe Mkhwebane was handed another significant loss on Monday, as the Pretoria high court ruled that she was biased in her investigation against public enterprises minister Pravin Gordhan and former Sars deputy commissioner Ivan Pillay.

In their judgment, judges Selby Baqwa, Leonie Windell and Annali Basson listed nine reasons why they came to their conclusion, as they set aside Mkhwebane’s report from July last year in which she found that the formation of an investigation unit at Sars, while Gordhan was the revenue collection service’s commissioner, was unlawful.

Mkhwebane also found in the same report that Sars, under Pillay’s guidance and management, established this unit. She furthermore found that Pillay was involved in “irregular and unlawful intelligence operations”.

But judges Baqwa, Windell and Basson said the investigation and report fell outside the jurisdiction of the public protector, as it related to events dating back to 2009. The Public Protector Act requires her to investigate matters which occurred not more than two years ago.

The court said bias was also shown in the manner in which the public protector interacted with Gordhan during the investigation and in releasing the report.

“Not only did the public protector elect not to 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 court ruled.

We are satisfied that the report is the product of a wholly irrational process bereft of any sound legal or factual basis. It cannot stand and must be set aside.

Section 7(9) of the Public Protector Act affords a person implicated in an investigation by the public protector an opportunity to be heard by providing evidence.

The court said Mkhwebane showed bias by her scurrilous allegations that Gordhan misled parliament and her relentless pandering of the untruths of Pillay’s qualification.

“The conclusion by the public protector ‘that the allegation that minister Gordhan during his tenure as the commissioner of Sars established an intelligence unit in violation of the South African Intelligence prescripts is substantiated’, is without foundation particularly as this conclusion is based on discredited reports and unsubstantiated facts.”

The court said the public protector’s bias against Gordhan and Pillay was manifest.

“Having regard to the manner in which the public protector simply dismissed out of hand and completely ignored and irrationally discarded hard facts and clear evidence, it is clear that she approached her investigation with a preconceived notion, determined to make adverse findings against minister Gordhan and Mr Pillay, thereby promoting the false rogue unit narrative.”

The court said the public protector had not undertaken, as required by her office, a fair and credible investigation and an open-minded consideration of the extensive body of evidence that was placed before her to confirm the truth.

“We are satisfied the report is the product of a wholly irrational process bereft of any sound legal or factual basis. It cannot stand and must be set aside,” the court said.

The court also ordered Mkhwebane to pay 15% of the costs of the case in her personal capacity.