Another blow for Mkhwebane as High Court sets aside rogue unit report

The Gauteng High Court in Pretoria has set aside Public Protector Busisiwe Mkhwebane’s report into the so-called SARS rogue unit.

In its ruling on Monday, the High Court found that Mkhwebane’s claims were not supported by the established facts that were placed before her, and “is fundamentally wrong in law”.

The rogue unit narrative has been widely debunked with some media such as the Sunday Times publicly apologising for articles previously written.

Now Public Enterprises Minister and former SA Revenue Service (Sars) Commissioner, Pravin Gordhan, had approached the High Court to review, declare unlawful and set aside her report, saying that she personally acted in breach of their constitutional duties to be independent and to exercise their powers and perform their functions without fear, favour or prejudice and declare that she personally, dishonestly or, alternatively, recklessly made her findings in the report against him in that he knew that the findings were false or were reckless as to their truth.

Rogue unit report

Mkhwebane released a report in 2019 “On an Investigation into Allegations of Violation of the Executive Ethics Code by Mr Pravin Gordhan, MP as well as allegations of Maladministration, Corruption and Improper Conduct by the South African Revenue Services”, in relation to the so-called ‘rogue unit’.

She found that the establishment of the so-called ‘rogue unit’ was unlawful and that Gordhan, who was Sars commissioner at the time, had violated the Constitution.

She also found that the unit had conducted irregular and unlawful intelligence operations and that Sars failed to follow procurement rules when it bought spying equipment.

Gordhan had denied that there was anything “rogue” about the intelligence unit which probed tax evasion.

He explained in his affidavit that the unit was established pursuant to an express commitment of government to crack down on crime generally and more in particular on organised crime

Gordhan further accused Mkhwebane of, wittingly or unwittingly, advancing the interests of political foes of President Cyril Ramaphosa’s political renewal project, designed to break the back of corruption that came to define former president Jacob Zuma administration.

Also read: IGI to investigate Mkhwebane, Rampedi and more over ‘rogue unit’ narrative

The renewal drive, he said, was opposed by those whom it frustrated in their continued quest to loot state resources, as they had during the state capture scandal. He reiterated that Sars had the legal right to establish an intelligence unit to investigate tax evasion, saying emphatically “there was nothing rogue about it”.

High Court findings

The court found that 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.”

Also read: ‘We warned them’ about Gordhan, says Malema after showdown at Zondo commission

On 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 that Mkhwebane 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, Minister Gordhan is not directly implicated in the Report in respect of these findings.”

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