Court invalidates Mkhwebane’s report on Ivan Pillay

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The Pretoria high court has set aside the most recent adverse findings by the public protector against former South African Revenue Services (Sars) official Ivan Pillay as unlawful.

It was the third report implicating Pillay issued on the watch of suspended public protector Busisiwe Mkhwebane to be overturned by the courts with scathing criticism of the manner in which her investigation was conducted.

The high court found that Mkhwebane violated Pillay’s constitutional rights by failing to give him any notice of the investigation and the right to be heard on the remedial action she considered granting against him. 

It granted a consent order on Monday declaring all aspects of the report relating to him and all remedial action directed against him unlawful and set aside. 

The report was issued in April and flowed from an investigation into “allegations of maladministration and improper conduct relating to irregular procurement processes by the South African Revenue Service” in the appointment of IT firm Budge, Barone and Dominick.

Mkhwebane previously made findings against Pillay and Public Enterprises Minister Pravin Gordhan, who was finance minister at the time, relating to his early retirement from the revenue service with full pension benefits and implicated him in the establishment of a so-called “rogue” investigative unit with Sars.

In both instances, her reports were overturned on review.

The office of the public protector has elected not to oppose any legal challenges filed against the third report, citing lack of prospect of success and the cost implications for an office that under Mkhwebane spent R67-million defending reports in court.

The parliamentary inquiry into her fitness to hold office will resume on Wednesday, after hearing evidence last week that she had pushed staff out of their posts and replaced them with members of the State Security Agency.

It also heard testimony from Pillay on Friday in which he pointed to what his lawyers termed “a litany” of abuses of power by Mkhwebane in her investigations into his retirement and the investigative unit.