Public Protector clarifies her investigation into the conduct of Minister Gordhan
Public Protector Adv. Mkhwebane notes the weekend media statement attributed to an attorney, who says he acts on behalf of the Minister of Public Enterprises, Mr. Pravin Gordhan. Adv. Mkhwebane wishes to reiterate that her office wrote to the Minister four times between February 2018 and July 2018, requesting the Minister to respond to the allegations that he irregularly approved Mr. Ivan Pillay’s retirement, bought off his pension balance and later allowed him to be re-employed by the South African Revenue Service (SARS) in 2010.
On 02 October 2018, Adv. Mkhwebane subpoenaed Minister Gordhan to appear before her on 14 November 2018. This was after the Minister failed to provide the Public Protector with a response to these allegations as requested in the preceding correspondences. The Minister, through his attorney, responded to the subpoena on 22 October 2018, indicating that he would present himself to the Public Protector as per the subpoena.
A number of questions have since been raised around these events and related public utterances. Adv. Mkhwebane wishes to offer clarity as follows:
- The Public Protector is empowered by the law to conduct a preliminary investigation for the purpose of determining the merits of complaints, allegations or information, among other things. 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;
- During the preliminary investigation stage, the Public Protector gathers all relevant evidence from any person who may be in a position to assist;
- The law empowers the Public Protector to investigate any conduct alleged or suspected to be improper or to result in any impropriety or prejudice. This includes allegations emanating from media reports. Members of the public and political parties regularly ask the Public Protector to investigate purely on the basis of the news reports. In such instances, the Public Protector is not provided with evidence supporting the allegations but this never stops her from investigating;
- The Public Protector expects nothing but full cooperation from public officials and Members of the Executive when conducting investigations. The constitution provides in section 181 that other organs of state must assist and protect the Public Protector to ensure the institution’s independence, impartiality, dignity and effectiveness;
- The Public Protector has powers in terms of the law to direct any person to submit an affidavit or appear before her to give evidence or produce any document, which has a bearing on a matter under investigation. She may also examine the person;
- The law further provides that any person, who, without just cause, refuses or fails to comply with such a direction or refuses to answer questions put to them or gives answers which they know to be false, shall be guilty of an offense. Any person convicted of such an offense shall be liable to a fine not exceeding R40 000 or imprisonment for a period not exceeding 12 months or both;
- Regarding the use of attorneys and advocates during appearances before the Public Protector, the law provides for legal assistance and not legal representation. This means that attorneys or advocates cannot speak on behalf of the person appearing before the Public Protector.
- With regard to confusion over the fact that a criminal case into issues similar to those before the Public Protector has been withdrawn, the attention of the public is drawn to the fact that the Public Protector’s mandate is essentially to investigate any conduct alleged or suspected to be improper or to result in any impropriety or prejudice, maladministration and/or abuse or unjustifiable exercise of power. Not all improper conduct or maladministration constitute a criminal conduct or offence; and
- It has also been insinuated that the subpoena was timed to coincide with the Minister’s appearance before the Zondo Commission of Inquiry. This is false. When responding to the subpoena on 22 October 2018, the Minister, through his attorney, revealed to the Public Protector that he was scheduled to appear before the Zondo Commission of Inquiry on 15 November 2018. This was not known to the Public Protector when she served the subpoena on the Minister twenty (20) days earlier.
Adv. Mkhwebane does not wish to comment further on this matter. She looks forward to Minister Gordhan’s appearance before her this week so that she can execute her constitutional mandate independently, impartially and without fear, favour or prejudice.
*The law referred to above is the Public Protector Act 23 of 1994, particularly relevant provisions of sections 6, 7 and 11.