In his founding affidavit filed with the Pretoria High Court, Gordhan said there were no “special circumstances” present for Mkhwebane to exercise her discretion on a matter that took place more than 10 years ago.
“The public protector may not entertain a complaint more than two years after the event at issue, except where, in special circumstances, the public protector exercises her discretion to do so.”
Gordhan insisted that Pillay’s early retirement was approved on October18, 2010, and that there were no “special circumstances” justifying Mkhwebane entertaining the complaint almost a decade later.
The former minister is asking the Pretoria High Court to set aside Mkhwebane’s report which made adverse findings against him. He also wants the court to order personal costs on a punitive scale against Mkhwebane.
In his court papers, Gordhan said her report was riddled with reviewable errors.
“It mis-states the applicable legal framework for the approval of Mr Pillay’s early retirement with full benefits. It rests its findings and remedial action on flawed logic and a misunderstanding of the facts. It is also a product of a procedurally unfair and flawed process.”
Gordhan said the final report revealed no sign of any meaningful consideration of, or reflection on, the contents of his submission.
He said the timing of the report was politically charged, days before President Cyril Ramaphosa was to announce his Cabinet.
“I can only conclude that the rush to complete and issue the report within two days of the receipt of my submissions was informed by improper and irrelevant considerations, or an ulterior purpose or motive,” he said.
Gordhan said the report was issued to enable a renewal of an ongoing political campaign against him by proponents of “state capture” and defenders of corruption.
He said there was nothing new identified by Mkhwebane in her investigation.
Mkhwebane’s spokesperson Oupa Segwale said: “Minister Gordhan, like any other person aggrieved at the public protector’s findings, is free to go to court for recourse. The courts will have the final say on all of that.”
Earlier, EFF leader Julius Malema told broadcaster eNCA Gordhan should decline a Cabinet post offer if Ramaphosa made it, to clear his name.