Public Protector report finds Gordhan guilty

PUBLIC Enterprises Minister Pravin Gordhan acted illegally and irregularly when he approved the early retirement of former SA Revenue Service (Sars) acting commissioner Ivan Pillay, and President Cyril Ramaphosa must institute disciplinary action against him.

These are Public Protector Busisiwe Mkhwebane’s findings and recommendations in her scathing report on Gordhan during his tenure as finance minister.

She ordered Ramaphosa to take note of her findings and take appropriate disciplinary action against Gordhan for “failing to uphold the values and principles of public administration entrenched in the Constitution”.

Mkhwebane has also told Sars to recover the penalty of nearly R1.3 million it paid to the Government Employees Pension Fund from its former commissioner Oupa Magashula.

The money was paid after Gordhan approved Pillay’s early retirement.

In his interview with Mkhwebane in November, Gordhan said he approved Pillay’s early retirement after obtaining legal and other advice from diverse sources to ensure his decision was sound in law.

He then applied his mind and approved the motivation from Magashula in 2010. According to Gordhan, he also consulted former National Treasury deputy director-general Andrew Donaldson and sought legal advice from former Sars official Vlok Symington.

Gordhan told Mkhwebane that he took his decision after three months of consideration, which indicated that he undertook vigorous checks of the law and various experiences were considered. He also took into account Pillay’s financial needs and his health condition (back problems) when making his decision.

Gordhan denied that he knew Pillay from their Struggle days influenced or affected the approval of Magashula’s recommendation for the early retirement, the payment of the R1.3m penalty and subsequent retention of Pillay.

Mkhwebane also interviewed Pillay in March this year and he told her that although he met Gordhan in the early 1970s, they were not friends and they never visited each other’s homes, but were comrades. Pillay said he was told by Magashula that about 4000 public servants had made similar requests and received similar resolution.

Magashula said despite not having a degree, Pillay fully met the requirement for the position of Sars commissioner.

“Nothing unlawful was done and I was told that at the time a few thousand people, who had served in the public service, retired in the very same way with the approval of various ministers,” Magashula told Mkhwebane in March.

Despite taking early retirement, Pillay continued to work for Sars with no break in employment service.

But Mkhwebane was unconvinced, disputing Pillay’s assertion that her findings arise from the erroneous application of facts including the incorrect application of the applicable law, a process of irrational reasoning, a clear pattern of bias and a failure to apply an open and enquiring mind in pursuit of the truth.

She said the retention by Gordhan of Pillay prevented other suitably qualified candidates from contesting for the position.

Gordhan’s lawyers Malatji Kanyane Incorporated told Mkhwebane that her findings against their client were mistaken.

Mkhwebane found that Gordhan was not authorised to approve Pillay’s full pension benefits and his retention as Sars deputy commissioner.

The report into Pillay’s early retirement and retention was among over a dozen reports released by Mkhwebane yesterday in her office in Tshwane.