Mkhwebane’s head is on the chopping block

Once again, Public Protector Advocate Busisiwe Mkhwebane has been found wanting by a superior court – and this time it could have real-life consequences for her as she blunders from one damning judgment to the next.

Monday’s judgment handed down by three justices of the High Court in Pretoria – Selby Baqwa, Leonie Windell and Annali Christelle Basson – dealt with Mkhwebane’s report 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 [Sars]”.

While the judgment hammered yet another nail into the Sars “rogue unit” narrative, the “shockingly inappropriate and unwarranted” “personal” attack on Justice Sulet Potterill appeared to have particularly raised the court’s ire – and required the judgment to be sent to the Legal Practice Council (LPC) for consideration.

The South African Legal Practice Council code of conduct is legislated under the authority of Section 36(1) of the Legal Practice Act, 28 of 2014 and says, inter alia, in Section 3: “Legal practitioners, candidate legal practitioners and juristic entities shall (3.1) maintain the highest standards of honesty and integrity.”

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The code of conduct further states: “Failure to adhere to the code of conduct will constitute misconduct and transgressors will be subjected to disciplinary proceedings in terms of its rules – which under Section 3 allow for removal of a member”.

The LPC can also utilise Section 69 (1) (a) of the LPC Act, which stipulates a finding by a disciplinary committee in terms of Section 40 of any serious misconduct as set out in the code of conduct contemplated in Section 36 on the part of a legal practitioner; and/or (b) incapacity and incompetence which, in the opinion of the board, debars him or her from serving as a member of the board.

Defence attorney Cliff Alexander confirmed the procedure.

“Even if in disagreement with the court, you have a duty to conduct yourself with decorum,” Alexander said.

The court found Mkhwebane “not only committed an error of law regarding the code but was also contemptuous of the court and Judge Potterill personally.

“What makes this reprehensible conduct worse is that the remarks by Adv Mkhwebane were made under oath, when she ought to have known about the falsity thereof. This clearly held the possibility of misleading this court. This is conduct unbecoming of an advocate and officer of this court. She owes Judge Potterill an apology.”

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

Mkhwebane’s “mistake”? By reading the nonexistent word “inadvertent” into the Executive Ethics Code which only contains the word “wilfully” when it comes to misleading the legislature, the judges noted.

The public protector is at least afforded a chance to make representations, something she failed to offer to the one person who knows most about what was happening at Sars at the time when working on her “report”.

“Of all the ‘witnesses’, the person best suited to tell the public protector what the unit did, was Mr [Johann] Van Loggerenberg,” the judges noted. “She failed to interview him. And when he filed an affidavit in the review proceedings, she simply ignored his evidence.”

In response, Van Loggerenberg said it was the “fundamental question”.

“At the crux of it, I can only echo one quote in the judgment which I have consistently maintained since day one,” Van Loggerenberg said.

“Despite being able to answer, it has never been posed to me, never been considered and never taken into account by all the ‘panels’, ‘investigations’ and detractors of the unit.

“This remains the case to this day,” he added in welcoming the judgment.

Sars said in a statement it was a “seminal judgment that brings necessary closure to the unfortunate, distracting narrative surrounding the establishment and functioning of the Sars high-risk investigation unit”.

“Moreover, it confirms Sars’ powers to gather intelligence relating to tax offences.”

– amandaw@citizen.co.za

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