Public Protector vs Pravin Gordhan: It is also a matter of perception

On Friday 5 July, Public Protector Busisiwe Mkhwebane released yet another set of findings about SARS and events that transpired there more than six years ago. Again, the Public Enterprises Minister Pravin Gordhan appears to be the target of these findings.

There are many questions regarding the latest findings and Mkhwebane’s conduct. But the main question may well be whether or not the public perception of Gordhan is changing. If it is not, then the findings may have little impact. Still, it appears that the end-game is approaching, although it is uncertain what that will be.

On Friday, Mkhwebane released findings in which she said the unit at SARS that was set up to investigate high-level tax evasion was created illegally. Former deputy SARS commissioner Ivan Pillay immediately moved to have a legal review of the finding. He also released documents in which he explained his response to her questions in which he explained how documents were taken from safes, and how former president Jacob Zuma’s son Edward phoned him to intervene on a particular matter.

The history of this unit is long and complicated. It was labelled a “rogue unit” in a Sunday Times headline, before that headline and the story that underpinned it were retracted.

At the time, Tom Moyane was the new head of SARS. It is clear from what we know now, that he was intent on weakening the institution. Testimony from Bain and Company, which was brought in to conduct a restructuring of SARS, shows that it knew Moyane would be the new SARS commissioner long before he was appointed and that it would be involved in its restructuring.

A legal inquiry headed by advocate Muzi Sikhakhane found the unit was created illegally. This was used by Moyane as a pretext to suspend the then deputy SARS commissioner, Ivan Pillay, the head of the unit itself, Johan van Loggerenberg, and the head of strategic planning at SARS, Peter Richer.

Knowing what we now know (and particularly the findings by the Nugent Commission against Moyane and others), it appears that removing Pillay, Richer and van Loggerenberg was crucial for Moyane. They were the main people standing in the way of his plan (and the interests of Jacob Zuma) to weaken SARS.

What is fascinating about Mkhwebane’s finding now is that there was an important part of Sikhakhane’s finding that can be easily missed. While he did find that the unit was created illegally, his inquiry also made it clear that those findings did not justify the suspensions of Pillay, Richer and Van Loggerenberg.

Now it seems that Mkhwebane is holding Pillay, and interestingly, Gordhan himself, responsible for the formation of this unit in an illegal fashion.

This also differs with the finding of retired Supreme Court of Appeal Judge Robert Nugent, who found the unit was not created illegally.

While lawyers can argue about this sort of thing, it should be remembered that Mkhwebane has not had a good track record in court. It is not just that she has lost applications about her findings, it is also that she abandoned her findings in her first major case, in which she found that Parliament should change the Constitution to change the mandate of the Reserve Bank.

It seems that the perceptions of the public about all of this are crucial: in other words, do her findings change the views that people have of Gordhan and those around him?

Mkhwebane’s own utterances may well weaken her position. She has said that she was placed in her position “by God” and that only God can remove her. This may lead some to question her loyalty to the Constitution, whose protection happens to be her job.

On Friday, she also claimed that one of her protectors had been poisoned, amid a slew of other claims that she was being targeted.

On Sunday, City Press reported that she said she had been warned, “I must watch what I eat”. However, the same paper reported police as saying there was “no evidence” to substantiate her claims that her protector had been poisoned. The spokesperson said they were not aware of any such incident until her press conference on Friday.

This could easily lead to more claims around why she would make this sort of vague claim with no evidence to back it up. Taken together with her other claims about divine intervention in her career, her critics would say she cannot be taken seriously.

However, we live in an age in which people pick and choose which set of 'facts' to believe. As a result, Mkhwebane’s supporters will not be swayed and will continue to back her.

In the meantime, it is likely that those who oppose her, particularly those who support President Cyril Ramaphosa, will continue their attempts to put pressure on her in Parliament. Already National Assembly Speaker Thandi Modise has said the Justice and Correctional Services Committee can start its own proceedings into her conduct.

It could well be this that is behind her latest salvo of reports.

The ultimate test of perceptions of her conduct will come if, and seemingly when, she makes her findings around the Bosasa loan or donation to Ramaphosa’s ANC leadership campaign. She will then be taking on Ramaphosa, who is likely to have a better image than she does.

In the meantime, however, there is a much bigger question about what the throwing of mud will do to our society. None of the perceptions that people have of our leaders are set in stone. We live in a cynical country, particularly after the last decade. As a result, if enough mud is thrown at almost anyone it might stick. This would mean that Ramaphosa and Gordhan could have their reputations tarnished.

The longer-term impact of this would be to diminish everyone in public life. No one would be respected, people who take on jobs or campaigns with the best of intentions will be met with a cynical response. This would do more damage to our nation. DM