Busi makes a U-turn on Pravin
The biggest challenge facing the public protector is not how to protect the public, it is how to stay in office having clearly demonstrated that her understanding of the law and her powers is very limited.
After damaging tweet, public protector no longer looking for wrongdoing by Gordhan.
As Public Enterprises Minister Pravin Gordhan gears up for a grilling by Public Protector Busisiwe Mkhwebane tomorrow, her office has made it clear it did not need evidence of wrongdoing to investigate the minister.
The public protector’s spokesperson, Oupa Segalwe, said Mkhwebane had repeatedly made direct contact with Gordhan.
“Regarding the use of attorneys and advocates during appearances before the public protector, the law provides for legal assistance and not legal representation,” he said. “This means that attorneys or advocates cannot speak on behalf of the person appearing before the public protector.”
Segalwe said the public protector’s office was empowered by the constitution to probe any conduct alleged or suspected to be improper.
This included allegations contained in media reports.
“In such instances, [Mkhwebane] is not provided with evidence supporting the allegations, but this never stops her from investigating,” he said, adding that the office was empowered to conduct a preliminary investigation for the purpose of determining the merits of a complaint, an allegation or information. Segalwe said Mkhwebane was affording Gordhan the opportunity to respond to the allegations and that she expected nothing but full cooperation from public officials and members of the executive when doing so.
The office is investigating allegations of maladministration, dishonest and improper conduct against Gordhan following a complaint in November 2016 relating to the approval of former SA Revenue Service (Sars) deputy commissioner Ivan Pillay’s early retirement package in 2010.
The complaint was lodged by Lebohang Hoveka three weeks after the National Prosecuting Authority’s decision to withdraw charges against Gordhan on the matter. Hoveka is a speech-writer in former president Jacob Zuma’s office.
Segalwe said the fact that criminal charges were withdrawn had no bearing on Mkhwebane as her mandate was to investigate.
Segalwe said the insinuation that the subpoena was timed to coincide with Gordhan’s appearance before the State Capture Inquiry on Thursday was false.
Busisiwe affording Gordhan opportunity to respond.
So much happens in our news cycle in such a short time that it’s easy to forget that, in February this year, the High Court in Pretoria set aside a report by Public Protector Busisiwe Mkhwebane that ordered Absa to repay R1.125 billion (in the Bankcorp-CIEX matter).
Justice Cynthia Pretorius also ordered the public protector to pay 15% of Absa’s legal bill out of her own pocket, with the balance of 85% to be paid by her office.
The reason this momentous judgment against Mkhwebane wasn’t given the attention it deserves was because the day before, on February 15, President Cyril Ramaphosa had just been sworn in. The country was going through Ramaphoria, as the good vibes following Zuma’s removal came to be known.
Under normal circumstances that judgment would have been enough reason to institute an inquiry into Mkhwebane’s fitness to hold office. Having survived being labelled dishonest and a liar by Absa’s legal team, she’s done very little since then to redeem her name and also restore the respect that the public and parliament had for her office before she took over.
Her latest own goal is taking to Twitter to allege that Minister of Public Enterprises Pravin Gordhan had not responded to letters her office sent through to him regarding the matter of the early retirement payout to then official Ivan Pillay.
In the tweet, it is claimed that Gordhan did not respond to a letter sent out on February 5, 2018. And this is where Mkhwebane’s motives and judgment are called into question: Gordhan’s legal team responded almost immedi- ately, indicating that they had responded to the letter on February 16.
There was clearly no need for a public slanging match between the public protector’s office and that of Gordhan’s legal team. Having subpoenaed Gordhan to appear before her on the 14th of this month, what is the wisdom of her office trying to make it look like Gordhan disrespected her office?
Even if he had actually done what she accuses him of doing – not responding to her letters – she knows that her office has the legal power to ensure he complies with her requests without involving the public.
This is when it becomes quite clear why the high court found her office did not respect procedural fairness in the way she operated. An office founded on the principles of natural justice must always ensure the accused gets a fair chance to defend themselves against all accusations without feeling prejudiced.
The biggest challenge facing the public protector is not how to protect the public, it is how to stay in office having clearly demonstrated that her understanding of the law and her powers is very limited.
Playing to the gallery should be the last thing her office does. A week ago she gave the expected ruling that Minister Malusi Gigaba lied under oath and instructed the president to take action against him. That is power, and it’s power vested in her by the constitution.
To suddenly want other power through Twitter is bizarre to say the least. Maybe it’s time the portfolio committee on justice ignored her rants about interference and do what is necessary: protect the public from this public protector.