MEDIA STATEMENT ON BEHALF OF MR IVAN PILLAY

Court Order on the Public Protector Report No 4 of 2022

PRETORIA 08 August 2022 – The High Court in Pretoria this morning issued the attached Consent Order that effectively sets aside the Public Protector Report No 4 of 2022/23 and declares it unlawful.

The Public Protector Report into “allegations of maladministration and improper conduct relating to irregular procurement processes by the South African Revenue Services (SARS) [sic] in the appointment of Budge, Barone & Dominick (Pty) Ltd (BB&D)”, is the third to make adverse findings against Mr. Pillay, regarding his previous tenure as an executive of the South African Revenue Service.

It is also the third Public Protector Report to be set aside by judicial review, in which Mr. Pillay is an applicant.

In terms of today’s Consent Order, the remedial action directed at Mr. Pillay is set aside and declared unlawful. Importantly, the Court found that the Public Protector completely failed to give any notice to Mr. Pillay of the investigation, he was not granted the right to be heard on the remedial action that was being contemplated against him, and none of the rights to which he is entitled in terms of section 7(9) of the Public Protector Act (23 of 1994) were afforded to him.

The Court declared such conduct a violation of Mr. Pillay’s Constitutional rights.

In the two previous Reports (No. 24 of 2019/20 and No. 36 of 2019/20) that were also set aside by the courts, the Public Protector made adverse against Mr. Pillay regarding his early retirement from SARS and his pension benefits, his appointment as the former SARS Deputy Commissioner, and also implicated him in the establishment of a SARS investigative unit, deemed by the Public Protector to be “rogue”.

Testifying as a witness on Friday, in the proceedings of the Section 194 Parliamentary inquiry into the fitness of Advocate Busisiwe Mkhwebane to hold office, Mr. Pillay highlighted a litany of similar abuses of power in these investigations conducted by the Public Protector against him.

Text of the order:

IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA

CASE NO: 28240/22

In the application of:

VISVANATHAN PILLAY - Applicant

and

THE PUBLIC PROTECTOR - First Respondent

THE MINISTER OF FINANCE - Second Respondent THE AUDITOR GENERAL OF SOUTH AFRICA - Third Respondent

THE NATIONAL HEAD OF THE DIRECTORATE OF PRIORITY CRIME INVESTIGATION - Fourth Respondent

THE DIRECTOR GENERAL OF NATIONAL TREASURY - Fifth Respondent

THE COMMISSIONER OF THE SOUTH AFRICAN REVENUE SERVICE - Sixth Respondent

PRAVIN JAMNADAS GORDHAN - Seventh Respondent

GEORGE NGAKANE VIRGIL MAGASHULA - Eighth Respondent

THOMAS SWAHIBI MOYANE - Ninth Respondent

EDWARD KIESWETTER - Tenth Respondent

BARRY HORE - Eleventh Respondent

ORDER OF COURT BY CONSENT

Having read the papers filed of record, and having heard counsel for the applicant, an order in the following terms is granted by consent between the applicant and the first respondent:

1  The first respondent’s Report No 04 of 2022/23, dated 22 April 2022 (“the Report”) is reviewed, declared unlawful and set aside in each instance where it relates to the applicant;

2  The remedial action directed by the first respondent in paragraph 8 of the Report is reviewed, declared unlawful and set aside to the extent that it relates to the applicant;

3  It is specifically declared that the first respondent’s conduct in failing to provide the applicant with:

3.1 any notice whatsoever of the investigation;

3.2 any of the rights to which he is entitled to in terms of section 7(9) of the Public Protector Act, 23 of 1994; and

3.3 any right to be heard on the remedial action that the first respondent contemplated granting against him,

is in breach of the applicant’s Constitutional rights;

4  The first respondent is ordered to pay the costs of this application on the unopposed scale.

BY THE COURT

REGISTRAR

WERKSMANS ATTORNEYS

Attorneys for the applicant

C/O BRAZINGTON & McCONNELL

THE PUBLIC PROTECTOR OF SOUTH AFRICA

First respondent

ENDS

Statement issued on behalf of Ivan Pillay, 8 August 2022