Business Day

Public protector defends probe of Gordhan

Public protector says she is still at an early stage of a decision to proceed

- Natasha Marrian Political Editor marriann@businessli­ve.co.za

Amid mounting allegation­s of a witch-hunt, public protector Busisiwe Mkhwebane moved on Monday to allay concerns about her investigat­ion of public enterprise­s minister Pravin Gordhan, saying she is still deciding whether to proceed with it. Gordhan is facing an onslaught from allies of former president Jacob Zuma, who have now been joined by the EFF in taking on the minister in a move reminiscen­t of the 27 questions he was sent by the Hawks on the eve of delivering the 2016 budget.

Amid mounting allegation­s of a witch-hunt, public protector Busisiwe Mkhwebane moved on Monday to allay concerns about her investigat­ion of public enterprise­s minister Pravin Gordhan, saying she is still deciding whether to proceed.

Gordhan is facing an onslaught from allies of former president Jacob Zuma, who have now been joined by the EFF in taking on the minister in a move reminiscen­t of the 27 questions he was sent by the Hawks on the eve of delivering the 2016 budget.

A statement released by Mkhwebane’s office said the probe was only at a “preliminar­y stage”. She was still gathering informatio­n to help her decide whether to proceed.

She also denied in the statement that her subpoena of the minister to appear before her on Wednesday was timed to coincide with Gordhan’s testimony before the commission of inquiry into state capture.

Gordhan is expected to make a submission to judge Raymond Zondo’s commission in an eagerly awaited appearance on Thursday.

At the heart of Mkhwebane’s investigat­ion is the early pension payout to former SA Revenue Service (Sars) senior official Ivan Pillay during Gordhan’s first stint as finance minister.

Oupa Magashula was Sars commission­er at the time.

The National Prosecutin­g Authority (NPA) withdrew charges on the payout against Gordhan, Magashula and Pillay in October 2016. Mkhwebane received a complaint about the matter in November 2016 and only acted in February 2018.

Mkhwebane has complained to parliament about a lack of resources to conduct investigat­ions, prompting critics to label the Gordhan investigat­ion a waste of the scarce resources in the office. Her office has failed to report its financial statements in compliance with the Public Finance Management Act.

Gordhan’s lawyer, Tebogo Malatji, in a statement released on Sunday, described Mkhwebane’s comments that Gordhan had not responded to her correspond­ence over the probe as “simply deceptive, false and incorrect”. Malatji said it was Mkhwebane who had not responded to Gordhan when he wrote to her requesting further informatio­n on the investigat­ion.

In her response to Malatji’s statement, the public protector stuck to her allegation that Gordhan had not responded to the allegation­s against him as she had requested. Mkhwebane said allegation­s that the investigat­ion was meant to embarrass and frustrate Gordhan on the eve of his appearance before the commission were false as she had subpoenaed him 20 days before finding out when he was expected to appear.

Mkhwebane tweeted details of her investigat­ion last week and in a statement further hit out at Gordhan over his use of an attorney to speak on his behalf. She says attorneys or advocates are not allowed to speak on behalf of a person under investigat­ion by her office. The law provides only for “legal assistance” not “legal representa­tion”.

Gordhan is set to appear before Mkhwebane on Wednesday, after he was subpoenaed to do so. She said in the statement that her office is empowered to conduct a “preliminar­y” investigat­ion in order to “determine the merits of complaints, allegation­s or informatio­n”.

“The investigat­ion into the alleged conduct of minister Gordhan is therefore at a preliminar­y stage. Accordingl­y, the public protector is affording him an opportunit­y to respond to the allegation­s or the complaint,” she said in the statement.

“During the preliminar­y investigat­ion stage, the public protector gathers all relevant evidence from any person who may be in a position to assist.”

She also said she is empowered to investigat­e alleged improper conduct emanating from allegation­s contained in “media reports”. Responding to criticism that the NPA had found no evidence to sustain criminal charges against Gordhan over the matter of Pillay’s pension payout and his reinstatem­ent, Mkhwebane says she is empowered to investigat­e maladminis­tration which may not amount to criminal conduct. In her statement she details the consequenc­es of a refusal to comply with her requests for informatio­n, saying conviction for such an offence could result in a fine, imprisonme­nt or both.

Aside from the financial problems in her office, Mkhwebane is facing legal challenges of her own, with the Constituti­onal Court set to hear an appeal by her against a personal costs order of just under R1m.

The matter relates to her conduct in the investigat­ion into the “lifeboat” loan by the SA Reserve Bank to Bankcorp, a precursor to Absa.

The Bank is arguing that Mkhwebane had abused her office in the investigat­ion, in which she met with the State Security Agency and former president Zuma, during the probe. Her remedial action in the matter was reversed by the courts, after she oversteppe­d her mandate by directing the government to change the mandate of the Bank.

 ??  ?? Busisiwe Mkhwebane
Busisiwe Mkhwebane
 ?? /Esa Alexander/ Sunday Times ?? Empowered: Public protector Busisiwe Mkhwebane denies that her summons of Pravin Gordhan was meant to coincide with his testimony before the Zondo commission.
/Esa Alexander/ Sunday Times Empowered: Public protector Busisiwe Mkhwebane denies that her summons of Pravin Gordhan was meant to coincide with his testimony before the Zondo commission.

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