A recording of a meeting between Pravin Gordhan and Busisiwe Mkhwebane in 2018 has finally seen the light of day as part of court records.

• Testy, often heated exchanges between Public Enterprises Minister Pravin Gordhan and Public Protector Busisiwe Mkhwebane in 2018 have been revealed.
• The exchanges are reminiscent of a clash between former public protector Thuli Madonsela and former president Jacob Zuma over her State of Capture report.
• It is unclear why the recording was published as part of records in Gordhan’s review of a different report.

For more than a year, the details of the meeting between Public Enterprises Minister Pravin Gordhan and Public Protector Busisiwe Mkhwebane in November 2018 have remained secret.
Gordhan was subpoenaed to appear before Mkhwebane to provide answers questions relating to the early retirement and subsequent reappointment on a contractual basis of former SARS deputy commissioner Ivan Pillay in 2010, when Gordhan was finance minister.
A recording of the meeting contained in court records filed by Mkhwebane reveals exchanges that show clearly the animosity between the pair, and how Gordhan from the outset doubted Mkhwebane’s ability to conduct a proper and fair investigation.
It is not immediately clear why Mkhwebane filed the recording as part of records pertaining to her investigation of the SARS intelligence unit review, which is a separate legal process, and was a separate investigation.
Mkhwebane eventually found against Gordhan in a report issued in March 2019, saying he had acted improperly and outside of the bounds of his authority in approving Pillay’s early retirement.
Gordhan immediately took the report on review, and it has been tied up in litigation ever since.
READ | Mkhwebane was determined to make findings against me ‘irrespective of evidence to the contrary’ – Gordhan
Similarly, a review filed by Gordhan of a second report by Mkhwebane which made adverse findings against him relating to the establishment of an “intelligence” unit at SARS in 2007, while he was SARS commissioner, has also been tied up in litigation since its publication in July 2019.
Gordhan’s SARS report review is before the Gauteng High Court in Tshwane on Thursday and Friday.
In both reviews, Gordhan successfully obtained interim interdicts preventing Mkhwebane from enforcing her remedial actions. The remedial actions included that President Cyril Ramaphosa discipline Gordhan, that Gordhan be investigated by the South African Police Service and the National Prosecuting Authority (NPA) and that his conduct be referred to the Parliamentary ethics committee for investigation.
In May 2020, the Constitutional Court dismissed an application for direct access by Mkhwebane and the EFF, who had joined both cases unopposed in support of Mkhwebane, who sought to have the High Court orders granting both interim interdicts set aside.
News24 understands a hearing date for the full review of the Pillay pension report is yet to be set.
Setting the scene
The early retirement of Pillay has continuously made headlines since 2016 – first when the Hawks sent Gordhan the now infamous list of 27 questions relating to several allegations against Gordhan and dealings with SARS.
Famously, former national director of public prosecutions advocate Shaun Abrahams was forced to withdraw charges against Gordhan on 31 October 2016 after approving the charges on 11 October 2016.
This was after it came to light that the Hawks Crimes Against the State unit, in charge of investigating the complaint first filed by former SARS commissioner Tom Moyane in 2015, had in fact been in possession of a critical legal memo authored by SARS’ internal legal advisor Vlok Symington advising that Pillay’s early retirement would be above board, which the Hawks allegedly withheld from the NPA and Abrahams.
Members of the Hawks allegedly held Symington ‘hostage’ in a SARS boardroom, attempting to wrest sensitive documents relating to Moyane’s role in the charges against Gordhan from him.
Gordhan, it emerged, had consulted widely and obtained more than one legal view before approving the request from SARS.
But Lebogang Hoveka, a speechwriter for former president Jacob Zuma, filed a complaint with Mkhwebane’s office on 18 November 2016 – just weeks after Abrahams withdrew charges and weeks after Mkhwebane assumed office – over the Pillay pension issue where it lay, apparently untouched, until late 2018.
Mkhwebane’s subsequent report on the Pillay issue was published just in time to cast doubt on Gordhan’s eligibility to be appointed to Cabinet following the May 2019 national elections.
Gordhan’s statement to the Zondo commission, before which he was due to appear in October 2018, was leaked, revealing the existence of the Public Protector’s investigation.
Comments in his statement that Mkhwebane’s investigation was a “misuse and abuse of public powers for suspicious objectives” ruffled feathers.
In the following weeks, media statements, tweets, further leaks to the media and allegations from both parties set the tone for an acrimonious relationship.
With this ominous backdrop, Gordhan arrives at the Office of the Public Protector on the morning of 18 November 2018.
Here are the key exchanges, excluding Gordhan’s extensive submissions on why he believed the approval of Pillay’s early pension was lawful:
Gordhan:
“As far as I am concerned, when events of different sorts develop and come to my attention or concern me, one has to first ask the question, is this part of the state capture narrative or project?
“And I want to submit to you that state capture is a reality. I have now had about eight months in the Ministry of Public Enterprises, so I can see what’s going on.
“At the same time, what is very evident in the recent past, and not so recent past as well, that there is a so-called fightback campaign, as I would call it, against those who wish to ensure the democracy which is envisaged in our Constitution in fact becomes a reality.”
Gordhan, on a letter on 11 November to Mkhwebane from Gordhan’s lawyer, in which he accused her of being deceptive as a result of a tweet claiming Gordhan was refusing to respond to her requests for information:
“The response from Mr Malatji to your February letter was about that. It was about asking the question, if you are conducting either an enquiry or a preliminary investigation or an investigation into what has been called maladministration and impropriety.
“What is the evidence? And to date, no evidence has been provided, nonetheless, I am expected to provide either documents or give evidence in relation to matters I actually do not have any specificity about.
“So, one has to logically ask the question, what am I responding to? Another aspect of the state capture conspiracy? Or are there some factual things that I have to actually respond to?”
Gordhan, on the content of Mkhwebane’s subpoena and letters:
“But a related matter, Advocate, is some of the language used in particular in the second letter, where I believe there is an attempt to impugn my integrity. So, maladministration I suppose is a neutral enough word although there is no evidence provided for that.
“Dishonesty? Or improper usage of resources? Or wasteful, fruitless or wasteful expenditure are completely unacceptable allegations if there is no evidence to back that up.
“And these kinds of serious allegations can’t be made, I submit, without the necessary evidence being actually available.
“So, I think it’s unfair, it’s improper and might I even suggest, unprofessional, and certainly at the level of my integrity offensive, to make these assertions without providing both myself and my legal team with the necessary evidence.”
The key exchange between Gordhan (PG) and Mkhwebane (BM), where Mkhwebane deals with the “deceptive” allegation:
PG: You have asked for documents to be made available to you… so we developed a pack for you, and we will hand that over to you. In there is the SARS letter seeking approval from myself dated 12 August 2010… may I interrupt myself and ask whether you actually have the documents?
BM: For the investigation?
PG: For whatever. Do you have these documents in your possession?
BM: Yes, yes, we do.
PG: So why do you ask for them from me?
BM: No, we do… some documents.
PG: Right. Are you willing to disclose them?
BM: Yeah, it’s not a problem. We will show you here what we have. That SARS letter, can we see? [Pause] That’s the submission. The submission we have received from SARS, yes.
PG: So, in February why didn’t we say we have X, Y, Z…?
BM:  No, we didn’t receive…
PG: And we don’t have A, B, C?
BM: No, we didn’t receive it in February. We just received it recently when we were subpoenaing the documents from SARS and GEPF [Government Employees Pension Fund], not from you and that was after we had written to you already in February.
BM: And I think, Minister… take us through, and then I will respond to your remarks. At the end of the day, what you need to understand is this process is inquisitorial, it’s not accusatorial. We are not a court of law.
PG: Your letter seemed to suggest otherwise.
BM: No. We are inquisitorial, therefore when we deal with public servants and executive we also expect the executive to respond, we don’t expect to receive letters from attorneys and advocates. Hence I am saying that, we expect you to assist us to clear your name purely on that. And there’s nothing that we are doing which we are listening, and we cannot take our information from the media or whatever. The Public Protector we do our investigation quietly, behind the scenes, hence I even indicated that we don’t even want the media… even now the recording… I wanted to make sure that whatever information we are collating, it’s a proper investigation, this is not supposed to be something which is done in the media space, because again whatever information is there…
Because now I should have started by saying minister did you say that I am deceptive. Because again that is violating the Constitution by someone who is an executive.
Again if your attorney is writing that against the constitutional institution, how do we regard that? Because also it’s violation of the Constitution. Where we are saying no one, in terms of the Constitution, or no organ of state must interfere with the work of the Public Protector.
And in this particular instance, I must indicate that this was done quietly, until such time there was somebody from the media who decided to write about this particular information and then everyone came to the fore.
Possibly on that one I am just making sure that whatever conspiracies and dishonesties and everything, that is not our intention and that will never be what we focus on.
And again the information that there is evidence at the NPA, there is evidence in the media… we need to acquire the evidence from the person who is implicated so that we are sure that we are dealing with the evidence that is supposed to be there.
What the NPA has done, is criminal investigation. We’ve got more ways of…
PG: I am not going into that. I am talking about access to documents.
BM: Definitely.
PG: Let me address the four points you have raised. As far as I am concerned, you can have the media here, we have nothing to hide.
BM: It’s not about hiding, minister.
PG: No, no, no… please hear me out, please hear me out. You are the one who talked to other media, not me.
On legal representation:
PG: My advice is that it is at this gathering that legal representatives cannot speak on my behalf. It doesn’t stop a lawyer representing me in any correspondence with you. That’s my advice. But lawyers to lawyers, you can have that exchange.
BM: No, because we are not investigating the lawyer, we are investigating you. Hence we are giving you an opportunity…
PG: The Constitution entitles me to legal representation.
BM: Definitely. Who can assist you, not represent you, in these proceedings, that is very clear in terms of the Public Protector Act.
Gordhan, in closing:
PG: Thirdly, that hiring people on contract is a common practice, as I have just indicated…
BM: Hiring retirees, ja.
PG: Well, anybody. Doesn’t have to be a retiree, it can be anybody. If you require a particular set of skills at a particular point in time, which we do for example in the department right now, we need forensic investigators or an forensic investigator, we will hire the person for a year in order to help us to prepare for the Zondo commission.
BM: I am just referring to this particular one.
PG: Yes, I am making a more general point but in this case as well. Lastly, I think the complaint is ill-founded but that it’s a political matter as well as far as I am concerned and must be read in the context of the state capture issues that the country is confronted with at this particular point in time.
Mkhwebane’s parting shot:
BM: Minister, thank you so much for your time, and for availing yourself. And I must also indicate unfortunately some of us are in that space where those political wrangling are happening.
Again I will request your cooperation when I bring to your attention again that complaint by EFF, I think you have seen it, that you have violated the executive members ethics act and unfortunately also on that one that is obligatory for me, it says I must investigate, doesn’t give me a discretion where I can say I have a discretion in terms of section 6 9 of the Public Protector Act and I will request your cooperation on that one when we send.
PG: You are welcome to write and then we will respond to that.
BM: Thank you, minister.
PG: But as you know, that is all political gains. But, that’s our country at the moment.