Public Protector Busisiwe Mkhwebane believes President Cyril Ramaphosa is failing to uphold the Constitution by not taking action against Minister of Public Enterprises Pravin Gordhan, as she recommended, according to a report on Monday.

Earlier this year, she found Gordhan guilty of "improper conduct" and urged Ramaphosa to take disciplinary action against him and the South African Revenue Service (Sars) to get back a pension payout made to former Sars deputy commissioner, Ivan Pillay, Fin24 reported.

She has since written to Ramaphosa, indicating that his refusal to implement her remedial action was not only a failure to uphold the Constitution, but was also a foregone conclusion, as it was only based on Gordhan's assertions, Business Day reported on Monday.

Gordhan's legal team filed a court review application at the end of May, asking for Mkhwebane's report to be set aside and for an order that she did not in act in accordance with the Constitution or the Public Protector Act.

In their submissions to Mkhwebane, Gordhan – and other affected parties, including Pillay and former Sars commissioner Oupa Magashula – argued that Mkhwebane was mistaken in her conclusions and that she had made factual errors, as well as mistakes in legal interpretations.

The Presidency said it could only decide on Gordhan's fate after the court action had been finalised, according to Business Day.

Calls for removal

In October 2016, then-National Prosecuting Authority (NPA) head Shaun Abrahams withdrew a summons he initiated against Gordhan, who was finance minister at the time, as well as Magashula and Pillay. This was over an investigation into a so-called rogue unit at Sars while Gordhan was still its commissioner, as well as his approval of early retirement benefits for Pillay.

Calls for Mkhwebane to be removed from office have intensified after she released a report following Abrahams' withdrawal of the summons in 2016, saying Gordhan should not have approved Pillay's early retirement and his re-employment on a fixed-term contract.

While flip-flopping over her suitability for the post before, the EFF has thrown its weight behind her and rejected calls for her removal simply because she found against Gordhan.

Mkhwebane is also investigating Ramaphosa over his failure to declare a R500 000 donation to his 2017 ANC leadership campaign from the former chief executive officer of Bosasa (now African Global Operations), Gavin Watson.

Ramaphosa responded last week to her notice of investigation into his "alleged violations of the Executive Ethics Code", by submitting various documents which he hoped would bring the matter to a conclusion.

The ANC welcomed the move.

"This sends a strong message to all South Africans that we are all equal before the law and that the Office of the Public Protector, as a Chapter 9 institution, must be respected," ANC spokesperson Pule Mabe in a statement on Friday.