The Pretoria high court will on Friday hear an application by the EFF and Public Protector Busisiwe Mkhwebane to appeal last year’s judgment which set aside her report on the so-called South African Revenue Service (Sars) rogue unit.
The high court in December issued a punitive costs order against Mkhwebane and found the report “fundamentally wrong in law”.
This after Public Enterprises Minister Pravin Gordhan approached the court to review and aside the report following its release in 2019.
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The EFF and Mkhwebane are applying for leave to appeal to the Supreme Court of Appeal (SCA) in Bloemfontein.
In her report, Mkhwebane found the establishment of the intelligence unit was unlawful and that Gordhan, who was Sars commissioner at the time, had violated the Constitution. She also found the unit conducted irregular and unlawful intelligence operations and that Sars failed to follow procurement rules when it bought spy equipment.
Gordhan has maintained there was nothing “rogue” about the unit which investigated tax evasion and questioned Mkhwebane’s motives for conducting the investigation.
The court found the Public Protector’s conclusion that the unit was established in violation of the National Strategic Intelligence (NSI) Act because it was set up without the involvement of the National Intelligence Agency (NIA) was wrong in law.
“The NIA was not legally required to be involved in the establishment of the unit. The Public Protector’s conclusion in respect of the apparent lack of involvement of the NIA in the establishment of the unit are therefore wrong in law, irrational and unlawful,” the court said.
About Mkhwebane’s reliance on two complaints by an anonymous whistleblower and another by Floyd Shivambu on matters older than two years, the high court said Mkhwebane had failed to identify the special circumstances on which she relied in terms of section 6(9), in order to pursue an investigation against Gordhan.
“The Public Protector’s decision to conduct the investigation was unlawful because there were no special circumstances present. The review should succeed in its entirety on this ground alone. However, if we are wrong in this regard and the Public Protector had the necessary jurisdiction to investigate the complaints, we will nonetheless consider the review.
“Although the Public Protector also found that Sars had failed to follow correct procurement procedures when it procured intelligence equipment for gathering intelligence and that the unit carried out irregular and unlawful operations, Gordhan is not directly implicated in the report in respect of these findings.”