South Africa: Public Protector Agrees to Minister Gordhan's Request for an Extension of Deadline Regarding Subpoenaed Documents

Left: Public Protector Busisiwe Mkhwebane. Right: Minister of Public Enterprises Pravin Gordhan.
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The Public Protector has acceded to a request by the Minister of Public Enterprises, Mr. Pravin Gordhan, dated Monday, 22 April 2019, for an extension of deadline regarding the affidavit and supporting evidence he was due to submit to Adv. Busisiwe Mkhwebane on Tuesday, April 23, 2019. A letter to this effect is en route to the Minister's office.

This is in connection with Adv. Mkhwebane's investigation into allegations of improper conduct, a violation of the Executive Ethics Code, irregular and unlawful activities by Minister Gordhan. Aspects of the investigation relate to his time as South African Revenue Service (SARS) Commissioner.

The Minister now has until Friday, May 03, 2019 to furnish Adv. Mkhwebane with the documents. He requested the extension, citing a decision by SARS to procure a legal opinion from counsel on whether it would be lawful to share with implicated parties, including Minister Gordhan, certain records that are in its possession.

These are records that Adv. Mkhwebane requires for the purposes of her investigation. In a letter dated Tuesday, 16 April 2019, SARS wrote to the Public Protector, communicating the information Minister Gordhan refers to.

"In the spirit of fairness, I have decided to grant Minister Gordhan the extension he has requested so that he may have a reasonable opportunity to gather the information I need as some of it goes a few years back," Adv. Mkhwebane said.

She added that her office will subpoena the records in question directly from SARS, and that she banks on the undertaking from Acting Commissioner, Mr. Mark Kingon, that SARS recognises her office as an independent constitutional institution as well as that he appreciates SARS' constitutional obligation to assist the office.

Should her office not be favoured with the information held by SARS and, as a last resort, she will have to invoke the Public Protector Act, particularly contempt proceedings.

The Act makes it clear that any person who, without just cause, refuses or fails to comply with a direction or request under section 7(4) or refuses to answer any question put to him or her under that section or gives to such a question an answer which to his or her knowledge is false or refuses to take the oath or to make affirmation at the request of the Public Protector in terms of Section 7(6), shall be guilty of an offence.

Moreover, section 11(4) of the Act provides that "any person convicted of an offence in terms of this Act shall be liable to a fine not exceeding R40 000 or to imprisonment for a period not exceeding 12 months or to both such fine and such imprisonment".

Adv. Mkhwebane would further like to bring to the attention of the public the fact that her office has received allegations to the effect that, shortly after the implicated parties were served with subpoenas, SARS held a meeting attended by most of the parties and that, at the meeting concerned, the kind of responses she received from institution and the Minister were coordinated.

The investigation continues despite the outstanding documents from SARS and Adv. Mkhwebane will proceed to issue notices in terms of Section 7(9) of the Public Protector Act. These are notices through which implicated parties are given an opportunity to comment on potential findings before the investigation report is finalised for public release.

Adv. Mkhwebane calls on the public to grant her the space to do her work without any undue hindrance and treat this case as they would treat an investigation involving the alleged conduct of any other public office-bearer, in the spirit of equality before the law.

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