Gordhan’s lawyers file papers against Mkhwebane, asking for costs

Public Enterprises Minister Pravin Gordhan’s lawyers have confirmed they have lodged an urgent application today to suspend and interdict the enforcement of the remedial orders by the public protector and also to review her report investigating allegations of violation of the Executive Ethics Code by Gordhan, as well as allegations of maladministration, corruption and improper conduct by the SA Revenue Service (Sars).

They have argued that in terms of the Public Protector Act, the Public Protector should justify or provide “special circumstances” to entertain any complaints regarding events or conduct more than two years old.

“Despite repeated requests for an explanation on what ‘special circumstances’ she relied on for this investigation of matters from as far back as 2007, none has been forthcoming.

“The Public Protector misunderstands the law to arrive at a pre-determined outcome relating to the powers of intelligence services. There is no legal obstacle to SARS establishing an investigative unit to deal with the tax implications of organised crime and illicit trade like cigarette smuggling. In fact, this capacity is being re-established thanks to the findings and recommendations of the Nugent Commission of Inquiry;

“The Report ignores facts and their significance to reach its findings regarding the establishment of the SARS investigative unit. Among these are the discredited Sikhakhane panel report and its erroneous legal reasoning, the Sunday Times’ apology in April 2016 for its reporting relating to the SARS unit, Judge Kroon’s apology to the members of the unit for not interrogating the issues and making wrong findings, KPMG’s withdrawal of its report and refunding of the fees earned for it.

“The Public Protector misapplies the provisions of the Constitution and applicable legislation when making adverse findings. For example, section 209 of the Constitution regulates the establishment of intelligence services. It does not prevent SARS from establishing an investigative unit.

“The application by Min Gordhan also seeks to review and set aside the Report and have it declared unlawful, unconstitutional, irrational and invalid.”

They will be asking the court to award costs against Mkhwebane.

Last week, Mkhwebane announced that in her view Gordhan had lied to both parliament and the Zondo commission of inquiry into state capture when he said he couldn’t recall meeting members of the controversial Gupta family.

An investigation into Gordhan, which the public protector said was conducted “under extremely difficult conditions”, also contained the bombshell that the so-called “rogue unit” was real. She also found against Gordhan regarding the early retirement of former Sars deputy commissioner Ivan Pillay.

Mkhwebane said the allegation of the establishment of a Sars intelligence unit – often called the rogue unit – was substantiated, and that Gordhan should have been aware of the unit while operating as Sars commissioner. She added that she believed he “was aware”.

Mkhwebane said she possessed evidence that would prove that intelligence equipment was procured for use by the unit, and that this equipment was procured improperly. She said Sars has not provided her with the information she requested on this equipment.

According to the public protector, former Sars head Oupa Magashula had lied under oath about the existence of the unit.

Mkhwebane ordered President Cyril Ramaphosa, the National Prosecuting Authority (NPA), the national police commissioner, the speaker of the National Assembly and the minister of state security to apply the various remedial actions stipulated in the report.

These included the president taking “appropriate disciplinary action” against Gordhan; parliamentary speaker Thandi Modise hauling Gordhan in front of the Joint Committee on Ethics and Members’ Interests; the NPA finalising the court process relating to its investigation into the “rogue unit”; and police commissioner Khehla Sitole investigating Gordhan’s “criminal conduct”.

You can read the rest of Gordhan’s lawyers’ statement below:

Part A

4. Among other things, the court is asked to:

declare that the Public Protector’s remedial orders are suspended, until the judicial review of the Report is concluded; and
interdict the Office of the Public Protector (first respondent) and Adv Busisiwe Mkhwebane (second respondent) from enforcing the remedial orders until a judicial review of the Report is concluded.
Part B

5. In terms of Part B an order is sought in the following terms:

It is declared that the Public Protector, and Advocate Mkhwebane 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.
It is declared that the Public Protector, and Advocate Mkhwebane personally, dishonestly or, alternatively, recklessly made her findings in the Report against Min Gordhan, in that they knew that the findings were false or were reckless as to their truth.
The Public Protector, and Advocate Mkhwebane personally, are ordered, jointly and severally, to pay the applicant’s cost on the scale of between attorney and client.

6. As Min Gordhan states in his affidavit:

“IMPROPER MOTIVE

“228 Finally, whilst I have great respect for the Office of the Public Protector I doubt the competence, integrity, legal literacy and constitutional grasp of its incumbent of her powers, duties and functions.

“229 Whilst it is unfortunate that these sentiments must be expressed, I maintain that the suspension and interdict will be in the overall interests of justice because I strongly doubt the bona fides of the Public Protector in investigating and issuing the Report. The Public Protector has confirmed that I am the subject of three ongoing investigations by her office, I am not aware of anyone who has been singled out and pursued by her Office in this way…

“231 Instead of dealing with the pressing complaints of citizens, she is using the office for ulterior motives or the political motives of others. My belief is that the resources of this esteemed office are best employed doing what it was constitutionally envisioned to do i.e. protect the public from ongoing maladministration and not abused for improper and blatantly political motives.

“232 The competence and credibility of the Public Protector and her understanding of the Constitution have already been negatively pronounced on by Courts. Above, I discuss in detail the adverse costs order that has been made in respect of her, the scathing critique by the Courts made against her and the applicants who have successfully interdicted the release of her reports, because she denied them procedural fairness, or have had those reports set aside on the basis that her findings were unconstitutional and unlawful…

“COSTS

“234 In light of what is set out above, Adv Mkhwebane should be ordered to pay the costs of this review application personally and on a punitive scale.

“234.1 Once again, she has demonstrated that she is unfit to hold the Office of Public Protector.

“234.2 She continues to ignore her constitutional mandate, act without regard to the provisions of the law and seemingly in service to some other motive or agenda.

“234.3 Her conduct is the latest example of her now lengthy history of acting incompetently, unlawfully, unconstitutionally, unfairly and unjustifiably.

“234.4 An adverse costs order would be one way for this Court to join in those earlier efforts to correct her approach to her important work.

“234.5 Indeed, her seeming lack of reflection on her role and powers in light of those other decisions is a further basis for the costs order against Adv Mkhwebane.

“234.6 The taxpayers of South Africa should not have to continue to fund her unlawful conduct.

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