Public Protector Busisiwe Mkhwebane in Pretoria on 8 July 2020. Picture: Jacques Nelles
Guns blazing, suspended public protector (PP) advocate Busisiwe Mkhwebane punched holes in the 2020 High Court in Pretoria’s scathing judgment on her report into the SA Revenue Service (Sars) “rogue unit”, at the Section 194 inquiry into her fitness to hold office, calling on parliament not to rubber-stamp the findings, which found her to be “biased”.
The judgment by a full bench of the High Court in Pretoria, led by Judge Selby Baqwa, reviewed and set aside Mkhwebane’s report on Sars, finding that the PP not only failed in exercising her duties, but also showed bias against former Sars commissioner Pravin Gordhan and his deputy, Ivan Pillay.
According to the judgment, Mkhwebane also overlooked the Nugent report on Sars – a finding she has strongly rejected. In November, the Constitutional Court dismissed Mkhwebane’s appeal.
Referring to the high court judgment, advocate Dali Mpofu, for Mkhwebane, argued: “This is what brought us here, with the complainant having relied on this judgment. The factual conclusion of this judgment cannot be relied on.”
Mkhwebane said it was “not true I ignored the Nugent report” which was before the judges.
“If the judges applied their minds on issues before them, they would realise that I was wrongly accused, having failed to check what my report said.
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We never had any ulterior motives, because we referred to the Sars Commission of Inquiry. It is not true that I did not engage with the Nugent report, which I took into consideration,” she maintained.
Referring to the “legally flawed process” in the procurement by Sars of R40 million worth of surveillance equipment for its intelligence unit to counter illicit trade, Mkhwebane said: “You can listen to people and follow them with cameras, but do it within the law, with the consent of a judge.
The National Strategic Intelligence Act prohibits the covert gathering of certain intelligence.” Sars, under Gordhan, failed to adhere to the Public Finance Management Act in procuring the equipment, she said.
“The law applies to all of us on procurement and if there is deviation, it must be in a transparent manner. Sars failed to provide me with documents relating to the procurement of equipment for the unit – a violation of the law.
“If it was the auditor-general asking for the same information, Sars officials would have reacted differently. With procurement processes not adhered to, the procuring of the equipment was kept a guarded secret. Why keep such information a secret? Any state institution should account when audited.”
Describing Sars’ failure to provide her with information as “a blatant refusal”, Mkhwebane said it amounted to “a violation of the constitution” – making it difficult for her “to discharge my duties and conduct an investigation”. She said she struggled to get responses from ministers of intelligence.
She also criticised Gordhan for not taking full responsibility as a Sars accounting officer. “In his affidavit of 17 May, 2019, he said he was not involved in the purchase of the Sars intelligence equipment – contradicting what he said earlier about Sars needing the equipment.”
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