Mkhwebane determined to make findings against me ‘irrespective of evidence to the contrary’, says Gordhan

Public Enterprises Minister Pravin Gordhan says Public Protector Busisiwe Mkhwebane is determined to make adverse findings against him “irrespective of the evidence to the contrary before her”.

In doing so, she acted with “improper or ulterior purpose”, Gordhan added.

In a supplementary application filed on Monday as part of his review application of her investigation into him, Gordhan said Mkhwebane had failed to properly investigate the so-called “SARS rogue unit” case. This furthered a narrative about SARS that was so damaging to the institution that it amounted to “economic and fiscal sabotage”, he added.

Mkhwebane found that the “rogue unit”, an investigative unit within SARS, was established and operated illegally, and that Gordhan, as former minister of finance, should be disciplined by President Cyril Ramaphosa for his conduct.

Gordhan successfully interdicted the implementation of Mkhwebane’s remedial action on July 29, pending the outcome of a full review application.

As part of that process, she was obliged to file a full record of her investigation in court.

In terms of Rule 53 of the Uniform Rules of Court, the person or body whose action is under review in court is required to provide the court with a complete record of their decision-making process regarding the action in question.

The Constitutional Court, which previously censured Mkhwebane for failing to provide a complete Rule 53 record in another review application, previously said it should include “every scrap of paper” that could directly or indirectly have led to the decision in question.

Mkhwebane’s spokesperson, Oupa Segalwe, previously told News24 that the record she had filed in the Gordhan review application was complete, and that his lawyers were responsible for delaying the process by asking for documents which they already had.

But Gordhan alleged on Monday that Mkhwebane’s record failed to show how she had reached her conclusions.

He said his lawyers had asked Mkhwebane twice to furnish the court with the full record. The 1 000-page record that she first filed in August was 2 500 pages long after she had filed her third attempt, Gordhan said.

“The Public Protector’s disdain for the rules of this court is unfortunate and warrants censure.”

Jurisdiction

Gordhan said because the Public Protector Act required Mkhwebane to investigate complaints more than two years old only where “special circumstances” existed, she was required to show what these were in her investigation.

But she did not, the minister added.

He said Mkhwebane also ignored the fact that a number of other institutions had already investigated the investigative unit and, where they found wrongdoing, those reports had been retracted and apologised for.

“The Public Protector simply went ahead with the investigation without considering whether special circumstances were present and whether she had the prerequisite jurisdiction.”

Gordhan added that Mkhwebane’s predecessor, Thuli Madonsela, had also investigated the issue and had interviewed former acting SARS commissioner Ivan Pillay in 2014. He said Pillay had raised concerns at the time that the “peddling of misinformation about SARS” was part of a campaign to stop the organisation from combating illicit tax activities.

“The continuation of this campaign to date is tantamount to economic and fiscal sabotage,” Gordhan added.

The Gupta meeting

Mkhwebane also found that Gordhan had violated the Executive Ethics Act by “deliberately” misleading Parliament about a meeting he had where a member of the Gupta member was present. She found that Gordhan’s omission was deliberate, but he said if he had it was a bona fide mistake.

But Gordhan, in Monday’s affidavit, said there were anomalies in the Rule 53 record that raised questions about who the source of this complaint really was. He added Mkhwebane’s investigation was based on two complaints – an anonymous one filed in October 2018, and another filed by EFF chief whip Floyd Shivambu a month later. Yet neither of these mentioned the meeting with the Gupta family member, Gordhan said.

This was especially strange given that Mkhwebane had previously told Ramaphosa that the complaint was laid by Shivambu, he added.

When Gordhan’s lawyers asked for the source to be included in the Rule 53 record, they were pointed to recordings “related to the operations of the intelligence unit” that do not make any reference to the Gupta family at all.

‘Rogue unit‘

Gordhan said the record filed by Mkhwebane showed that she ignored investigative reports and legal opinions in her investigation, which showed that the intelligence unit was legal. He added the narrative that it was “rogue” was based on false intelligence campaigns which were used for political ends, and that Mkhwebane had not taken this context into account.

In fact, the record actually “discloses numerous documents that the establishment of the unit was in full compliance with the law”, Gordhan said, adding Mkhwebane also did not take these into account.

Matric certificate

Mkhwebane also found that Pillay did not have a matric certificate or any other qualification. Again, Gordhan said, the Rule 53 record was silent on how Mkhwebane came to this conclusion.

Gordhan said there were “no documents or materials in the record that set out which steps the Public Protector took to determine Mr Pillay’s qualifications, which was why she did not even know that he had matriculated”.

Gordhan said Mkhwebane was guilty of “procedural unfairness and bias”.

“The Public Protector erred in following an unfair procedure during the conduct of her investigation and acting with improper purpose or ulterior motive. It is evident from the record that the Public Protector was determined to make adverse findings against me irrespective of the evidence to the contrary before her,” he added.

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