Mkhwebane ‘did not interfere’ in Sars ‘rogue unit’ probe

Suspended public protector Busisiwe Mkhwebane did not interfere in the SA Revenue Service “rogue unit” probe, parliament heard on Monday, despite the 2020 adverse remarks by the High Court in Pretoria in the case involving Public Enterprises Minister Pravin Gordhan and Mkhwebane.

The court set aside, with punitive costs, Mkhwebane’s findings that Gordhan, a former SA Receiver of Revenue (Sars) commissioner, established a unit, which spied on taxpayers and abused its power – violating intelligence laws.

Not possible for Mkhwebane to get involved

But senior investigator Bianca Sinqobile Mvuyana, in her testimony before the Section 194 inquiry into Mkhwebane’s fitness to hold office, maintained “accusations that the public protector was responsible for tracing an individual in this matter are not true”.

“With the probe having been driven by the investigating team, it was not possible for her to get involved,” said Mvuyana under cross-examination by advocate Dali Mpofu for Mkhwebane.

Mvuyana conceded that the recruitment process for the unit failed to follow government processes, with staff head-hunted from Sars, SA Police Service and military intelligence, forming part of the team. Mpofu argued this was a “red herring” – a violation of the National Security Intelligence Act, showing it did not apply.

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“It was also in violation of the Interception of the Communications Act.”

Mvuyana, whose investigation formed part of Mkhwebane’s report into allegations of Gordhan’s “violation of the executive ethics code, maladministration, corruption and improper conduct”, said she was responsible for the investigation, including the plan, identification of role players, related documents and notices.

Referring to previous evidence given to the committee by Sars’ former executives Ivan Pillay and Johann van Loggerenberg, Mvuyana said: “I am of the view that some of their evidence has grossly misrepresented the true situation of what transpired during the investigation of the so-called rogue unit.

“I disagree with some of the evidence given, as well as some of the findings of the high court – and the factual foundation upon of such disputed findings.

“It is common cause that the term ‘rogue unit’ was first used in the public domain in 2014, when the story of the Sars investigation unit, broke in the Sunday Times.

“It was not invented, introduced or exclusively used by the public protector and her team. It is the term most commonly used in the public space by those who believe or disbelieve that the alleged existence of the unit was indeed unlawful or ‘rogue’,” said Mvuyana.

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“Apart from the public protector, various other independent reports, found that the establishment and operations of the unit were unlawful, because of the alleged nature of its activities.

“These allegations have been denied by Mr Van Loggerenberg, but have never been disproved. Whether they are true or false, I cannot say.

“My only point is that they are out there and were not manufactured by the public protector or officials in the PPSA [Public Protector South Africa].”

‘Difficult’ to locate Van Loggerenberg

Mvuyana said any criticism must take all these and other relevant considerations into account.

“Otherwise, such criticism will be consistent and deliberately skewed or unfairly targeted at the public protector and her team of investigators.”

Van Loggerenberg was “certainly not part of the investigation – although his name appeared on various documents that we analysed”.

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This led to the PPSA issuing a subpoena for documents from Van Loggerenberg. Mvuyana described it as difficult to locate Van Loggerenberg.

“It has also come to my attention that Mr Van Loggerenberg sometimes deliberately misspelt his surname, probably to avoid detection. This might have made efforts to find him, more difficult than usual,” said Mvuyana.

The hearing continues.

– brians@citizen.co.za