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Ivan Pillay’s legal team says that if the former South African Revenue Services (Sars) deputy commissioner had not retired early, the tax service would have cost him even more.
Last May, Public Protector Busisiwe Mkhwebane published a report on Pillay’s early retirement in 2010.
Their findings included that then-Finance Minister Pravin Gordhan had approved it irregularly and that, as a result, Sars had incurred more than R1.2 million in irregular expenses.
He found Gordhan guilty of “inappropriate conduct” and ordered President Cyril Ramaphosa to take “appropriate disciplinary action” against him, prompting the now minister for public companies and Pillay to appeal to the Pretoria High Court.
His request to review and annul the Mkhwebane report started yesterday.
In his arguments, defender Ross Hutton, on behalf of Pillay, said: “The simple fact of the matter is that Mr. Pillay’s early retirement came at an additional cost to him and, in effect, was to Sars’ financial benefit. .
He said that when Pillay took early retirement at the age of 57, he was entitled to the pension benefits that he would have received as a 60-year-old retiree.
These were “significantly lower than the benefits you would have received if you had retired at the mandatory retirement age of 65.”
Hutton described the report as “devoid of any solid legal or factual basis” and said that Mkhwebane’s bias against Pillay was “overt.”
He added: “She approached her investigation with a preconceived idea that he was the beneficiary of a windfall to which he was not entitled.
“His report is the product of a reverse engineering process to arrive at the preconceived result that the public protector had in mind from the beginning.”
Gordhan’s legal team argued that the process he had embarked on before deciding on Pillay’s early retirement was “a model of executive decision-making.”
Defender Wim Trengove of Gordhan said: “If only our public officials were as careful, circumspect and transparent as the minister was in this case.”
Mkhwebane’s findings against Gordhan were based on “legal errors” that she said she had made.
Trengove yesterday denied that there was anything illegal in Gordhan’s decision, adding that even if he had made a legal mistake, it would have been “an innocent mistake.”
“Adverse conclusions cannot be legally or adequately made against Minister Gordhan in circumstances where the evidence is clear that he acted with care, honesty and good faith.
“His conduct was not abusive, unjustified, unfair, capricious, rude, inappropriate or unduly delaying, in any way.”
Trengove argued that Gordhan had in fact walked “the extra mile,” and it took more than two months to make his decision.
“The minister consulted, directly and indirectly, with six experts. All six told him that it would be perfectly legal for him to approve the Pillay package. “
Mkhwebane lawyer Dali Mpofu began addressing the court on Wednesday and argued that Gordhan was guilty of criminal contempt for “insulting” the public protector.
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