The North Gauteng High Court will on Tuesday hear an urgent application by Public Enterprises Minister Pravin Gordhan challenging the implementation of Public Protector Busisiwe Mkhwebane’s remedial actions against him.
Gordhan filed his review bid in response to Mkhwebane’s controversial report published in early July relating to the so-called ‘rogue unit’ at the SA Revenue Service. The unit – also known as the High Risk Investigations Unit – was established in 2007 when Gordhan was the tax agency’s commissioner.
Mkhwebane found that the establishment of the unit was illegal and that it conducted unlawful intelligence operations. Her report stated that the tax agency failed to follow procurement rules when it bought spying equipment for its operations. In the same report she also found that Gordhan lied to Parliament by not disclosing a meeting where a member of the Gupta family may have been present.
The minister, meanwhile, is asking the court to suspend Mkhwebane’s binding remedial orders and interdict her office from enforcing them until a judicial review of her report is concluded.
In his founding affidavit Gordhan reiterates his view that the unit was not illegal. He says the public protector has permitted her office to become “weaponised” in what he called a “political war against unity and renewal”.
“The investigating unit lawfully established by SARS investigated tax rogues. There is nothing rogue about its establishment,” Gordhan said. Claims that the unit was illegal were “baseless, defamatory, scurrilous and false”.
The minister said Mkhwebane had “demonstrated she is unfit to hold the office of the Protector,” describing her actions as “incompetent, unlawful and unconstitutional”.
As part of her remedial action Mkhwebane ordered President Cyril Ramaphosa to take “appropriate” disciplinary action against Gordhan within 30 days. She also ordered that Parliament investigate the minister for violating its code of ethics and that the national police commissioner “within 60 days investigate the criminal conduct” of Gordhan and colleagues.
If Gordhan’s urgent interdict succeeds, these remedial actions will be put in ice.
Tuesday’s hearing follows a scathing judgment against Mkhwebane by the Constitutional Court. The apex court on Monday upheld a previous ruling by the North Gauteng High Court which found that Mkhwebane’s 2017 Absa/Bankorp investigation was flawed and she was not honest during her investigation.
The Constitutional Court agreed that Mkhwebane should personally pay 15% of the fees incurred by the SA Reserve Bank in challenging her findings, saying she had put forward “a number of falsehoods in the course of litigation”.
The court did, however, dismiss the central bank’s application for a declaratory order to find that Mkhwebane has abused her office while she undertook the investigation.
The Absa/Bankorp case stems from a report released by the Public Protector in 2017. In it she tasked the Special Investigating Unit with recovering R1.125bn in “misappropriated public funds” from Absa, saying the funds were an “illegal gift” given to Bankorp by the SA Reserve Bank in the 1980s. Bankorp was later subsumed into Absa.
This report was set aside by the North Gauteng High Court in February 2018. Mkhwebane then appealed the personal cost order to the Constitutional Court.
Several reports by the public protector have attracted legal review. President Cyril Ramaphosa on Sunday announced he would be challenging her recent finding that he misled Parliament regarding a R500 000 donation from Bosasa toward his 2017 ANC presidential campaign.