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Mkhwebane vs Gordhan: Remarks made by Gordhan constitute criminal contempt, court hears

Mkhwebane vs Gordhan: Remarks made by Gordhan constitute criminal contempt, court hears
  • The Public Protector wants the court to declare the applicants in the Ivan Pillay pension saga in breach of Section 9 of the PP Act.
  • Her legal team submits that remarks made by Pravin Gordhan constitute criminal contempt in terms of Section 9(1) of the PP Act.
  • The high court is hearing an application to review and set aside the Public Protector’s report on the approval of Pillay’s retirement.

Public Protector Busiswe Mkhwebane launched a counter application in the North Gauteng High Court on Wednesday, which asks the court to declare the applicants in the “Pillay pension saga” in breach of Section 9 of the Public Protector Act.

“We submit that the vast majority of the identified remarks made by Minister [Pravin] Gordhan, and fully inherited or adopted by Mr [Ivan] Pillay, constitute criminal contempt in terms [of] Section 9(1) of the Public Protector Act,” advocate Dali Mpofu argued on behalf of Mkhwebane on Wednesday.

The North Gauteng High Court was hearing an application to review and set aside the PP’s report 24 of 2019/20.

The report found, among others, the allegation that then finance minister Pravin Gordhan irregularly approved the early retirement of former deputy commissioner at SARS, Ivan Pillay, with full retirement benefits, and his subsequent retention at SARS was substantiated.

The court earlier heard that the PP’s conclusion in the matter was “irrational” because an error of law did not equate to improper conduct.

READ | Mkhwebane vs Gordhan: Public Protector’s conclusion on Pillay retirement ‘irrational’, court hears

Mpofu pointed out that the Public Protector Act provided that no person insults the Public Protector or Deputy Public Protector.

In addition, the Act states that no person shall, “in connection with an investigation or do anything which, if the said investigation had been in proceedings in a court of law, would have constituted contempt of court”.

In the 77-page heads of arguments, the PP’s legal team notes several remarks [to name a few] attributed to Gordhan that are examples of “unacceptable conduct and language adopted by the applicants”.

These include but are not limited to:

        –  The “unsubstantiated and unfounded” allegation that the timing of the release of the report was “suspicious” and indicates that the report was politically motivated;

        –  The allegation that the report was issued with “unseemly haste”;

        –  The “unsubstantiated” allegation that the report was informed by improper (and ulterior) motives; 

        – The “unsubstantiated” allegation that the PP “ignored” Gordhan’s submissions; and

     – The “serious” allegation that the report was issued “so as to enable a renewal of the ongoing political campaign” against Gordhan by opponents of “state capture” and defenders of corruption.

Mpofu argued that the tone and language adopted by Gordhan, with “which Mr Pillay says he fully associates himself with is condescending”.

“[It is] unnecessarily insulting, combative, rude and condescending towards the Public Protector. It also amounts to unlawful and prima facie criminal conduct,” Mpofu told the court.

The matter continues on Thursday.

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