Cape Town - The North Gauteng High Court in Pretoria has invalidated portions of suspended Public Protector Busisiwe Mkhwebane’s latest report on former SA Revenue Service (Sars) deputy commissioner Ivan Pillay.
The high court on Monday ordered that Public Protector Report Number 4 of 2022/23, which centred on an 18-year-old IT contract, be “reviewed, declared unlawful and set aside” in each instance where it related to Pillay.
The report looked at “allegations of maladministration and improper conduct relating to irregular procurement processes by Sars in the appointment of Budge, Barone and Dominick (Pty) Ltd. (BBD)”
The high court found that Mkhwebane failed to give any notice to Pillay of the investigation and he was not granted the right to be heard on the remedial action that was being contemplated against him.
The report also implicated Pillay in the establishment of a Sars investigative unit that the public protector deemed to have gone rogue.
This was the third report to make adverse findings against Pillay during his tenure at Sars. It was also the third PP report in which Pillay was an applicant to be set aside by judicial review.
In the two previous reports that were also set aside by the courts, the public protector made adverse findings against Pillay regarding his early retirement from Sars and his pension benefits as well as his appointment as Sars deputy commissioner.
The complaint was lodged by Mzwanele Manyi on October 13, 2016. Manyi made allegations of maladministration, corruption and improper conduct against Sars.
The allegations included, among others, that Sars irregularly appointed BBD for the provision of strategic projects and related services without following proper procurement processes
In April this year, Public Enterprises Minister Pravin Gordhan, Pillay and Mkhwebane lost their bid to overturn the North Gauteng High Court ruling on Pillay’s early retirement.
A full bench of the high court, judges Elizabeth Kubushi, Mpostoli Twala and Norman Davis, dismissed Mkhwebane’s appeal as well as Gordhan and Pillay’s cross-appeal.
In December last year, the three judges reviewed and set aside Mkhwebane’s report into Gordhan’s approval of Pillay’s early retirement and subsequent retention by Sars.
The high court declared unlawful and invalid Mkhwebane’s decision to exercise jurisdiction over the complaint in terms of the Public Protector Act, and reviewed and set it aside.
During his testimony to the ongoing Committee for Section 194 Enquiry into Mkhwebane’s fitness to hold office, Pillay said the public protector investigated him on three matters and found him guilty of misconduct and maladministration.
He said that in two of the three reports on the three investigations, Mkhwebane either ignored or dismissed the evidence he provided to her.
Pillay told the committee that in the latest report (the one that has since been dismissed by the North Gauteng High Court in Pretoria) he was not even informed by the public protector that he had been implicated in the investigation in which she had made an adverse finding against him.
He said in the first report the public protector found that he was a part and a beneficiary of a fraudulent scheme to enrich himself when he took early retirement from Sars.
He said the report was riddled with material errors and that the courts had reviewed it and set it aside.
In the second report, he said, the public protector found that he didn’t qualify to be appointed as commissioner of Sars as he did not even have a matric certificate and she had directed the police and National Prosecuting Authority (NPA) to investigate and prosecute him.
During last week’s hearings, Mkhwebane’s representative, advocate Dali Mpofu, again brought up the issue of Pillay’s matric and said it was both unusual and extraordinary to have a Sars commissioner with a matric certificate only as a qualification to be responsible for the country’s tax system.
Pillay said he joined Sars in a mid-ranking position and worked hard for 15 years. He told the committee that he did not appoint himself at Sars.
Pillay said that at the time of his appointment at Sars, no qualification was required for the position of commissioner or deputy commissioner.
Parliament’s inquiry resumes today.
mwangi.githahu@inl.co.za