The Public Protector Busisiwe Mkhwebane wrote to Public Enterprises Minister Pravin Gordhan four times before issuing him a subpoena to appear on November 14. 

The Public Protector on Monday issued a statement on the matter. Her office is conducting a preliminary investigation into Gordhan relating to the granting of early retirement for Ivan Pillay, former deputy commissioner of the South African Revenue Service (Sars). Gordhan was finance minister at the time.

This is an investigation of maladministration. Bloomberg reported that Pillay's early retirement resulted in R1.1-million in wasteful expenditure. 

It is different to the criminal investigation conducted by the Hawks into the same allegations in 2016, the office clarified in a statement. The National Prosecuting Authority (NPA) had laid fraud charges against Gordhan on October 11, 2016 and then later that month withdrew them as former head Shaun Abrahams said that Gordhan and others had not intended to act unlawfully.

Gordhan will appear before the Public Protector a day before he is set to give evidence before the Zondo Commission of Inquiry into State Capture.

"It has also been insinuated that the subpoena was timed to coincide with the Minister’s appearance before the Zondo Commission of Inquiry. This is false.

"When responding to the subpoena on 22 October 2018, the Minister, through his attorney, revealed to the Public Protector that he was scheduled to appear before the Zondo Commission of Inquiry on 15 November 2018. This was not known to the Public Protector when she served the subpoena on the Minister twenty (20) days earlier," the Public Protector's office clarified.

Gordhan's lawyers Malatji Kanyane Incorporated on Sunday issued a statement indicating that the minister would appear before the public protector to respond to the allegations against him. This is despite their request for the Public Protector to provide evidence of wrongdoing by Gordhan.

In the her statement, Mkhwebane further clarifies her powers. 

The Public Protector is empowered by law to conduct a preliminary investigation to determine the merits of complaints, allegations or information. "The investigation into the alleged conduct of Minister Gordhan is therefore at a preliminary stage. Accordingly, the Public Protector is affording him an opportunity to respond to the allegations or the complaint," Mkhwebane clarified.

The Public Protector is also empowered by law to investigate any allegations of misconduct, which may stem from media reports. "Members of the public and political parties regularly ask the Public Protector to investigate purely on the basis of the news reports. In such instances, the Public Protector is not provided with evidence supporting the allegations but this never stops her from investigating."

Mkhwebane said that "confusion" over a criminal case into issues similar to those before the Public Protector, which has been withdrawn, does not stop the office from investigating the matter. The office is mandated to investigate any conduct alleged or suspected to be improper or which has resulted in maladministration or abuse of power.

"Not all improper conduct or maladministration constitute a criminal conduct or offence," the statement read.