The stand-off between public protector Busisiwe Mkhwebane, state security minister Dipuo Letsatsi-Duba and public enterprises minister Pravin Gordhan over Mkhwebane’s SA Revenue Service (Sars) “rogue unit” investigation has reached boiling point — with all three threatening or considering legal action over the far-reaching probe.
Mkhwebane last week used her office’s legal powers to demand that Gordhan answer 12 questions, predominantly linked to his tenure as Sars commissioner, by next Tuesday. Should he fail to do, she said he will potentially be guilty of an offence under the Public Protector Act.
Gordhan’s lawyers are in turn understood to have raised objections to this, while his spokesperson Adrian Lackay described Mkhwebane’s probe as “another example of a fight-back campaign to disrupt efforts to uncover and prosecute instances of malfeasance and corruption in various entities of government”.
Mkhwebane’s office has dismissed these accusations and insists her investigation into Gordhan’s role in the unit, as well as claims that he instructed Sars to “pursue the tax affairs” of EFF leader Julius Malema, is “legitimate”.
According to retired judge Robert Nugent, who chaired an inquiry into Sars, the former commissioner of the tax body, Tom Moyane, received a legal opinion from senior counsel indicating that the establishment of the high-risk investigation unit, or “rogue unit”, was not unlawful.
“I find no reason why the establishment and existence of the unit was, indeed, unlawful, and I am supported in that by an opinion given to Mr Moyane by leading senior counsel in late 2015,” Nugent said in his interim report.
An advisory committee headed by retired judge Frank Kroon had previously reviewed the unit and found it was was illegally established. However, in a spectacular about-turn, Kroon told the Nugent inquiry in 2018 that his committee’s findings were “incorrect” and that the establishment of the unit was not unlawful.
Meanwhile, correspondence obtained by Business Day has revealed how Letsatsi-Duba slammed the leaking of a 2014 inspector-general of intelligence (IGI) report into the unit as “prejudicial to the national security interest”, and demanded that Mkhwebane immediately return all copies of the document.
The report in question was compiled by the late IGI Faith Radebe, under the orders of then state security minister David Mahlobo, and reportedly found there was evidence warranting a criminal investigation against Gordhan and other former Sars officials, including Ivan Pillay.
Mkhwebane says she obtained the report, which both EFF MP Floyd Shivambu and Moyane have filed as part of separate legal battles against Gordhan, through an “anonymous source”.
In a letter sent to Mkhwebane in February Letsatsi-Duba stresses that “the IGI does not have a legal mandate to investigate the South African Revenue Service, in terms of the Intelligence Services Oversight Act … and Sars-related activities could therefore not have been commissioned by the former minister of state security”.
In other words, Letsatsi-Duba raises doubts that the report, which Mkhwebane is now considering as part of her investigation into Gordhan, has any legal standing.
She further adds that the public disclosure of “classified information in the report would violate the rights of persons associated with Sars and the SSA [State Security Agency], potentially disrupting the SSA’s operations and impairing its intelligence-gathering methods, and threatening its operational co-operation with domestic institutions”.
“As a result, the unauthorised and unlawful disclosure of the information contained in the report will undermine the SSA’s ability to fulfill its counter-intelligence responsibilities … which include information security”.
In response, Mkhwebane — who was previously employed by the SSA — hits back at Letsatsi-Duba for the “threatening and condescending tone of your letter”, which she describes as “regrettable/unfortunate”.
Mkhwebane argues that the Constitutional Court ruling in the Nkandla report case makes it clear that her office “can investigate any conduct in state affairs”, and accuses Letsatsi-Duba of seeking to unlawfully interfere in her work.
The public protector tells the minister that unless she stops this alleged interference, she will have no choice but to seek an order that Letsatsi-Duba has shown contempt for her office and violated the constitution.
In March she laid criminal charges againstLetsatsi-Duba after the minister laid charges over the leaking of the report.
The Hawks have not responded to requests for comment on the status of these cases.
With Mkhwebane also investigating whether President Cyril Ramaphosa deliberately lied to parliament about a R500,000 donation his ANC presidential campaign received from Bosasa CEO Gavin Watson, any intervention from his office in this unfolding saga would be unwise.
But should Gordhan openly defy Mkhwebane or law enforcement act on any of the cases opened as a consequence of this stand-off, it could result in a constitutional crisis that arguably has been brewing for some time now.
The rogue-unit investigation saga has become a giant and far-reaching game of legal chicken, in which the constitutionally protected status of the public protector is being subjected to unprecedented scrutiny and challenge.
It seems very likely that with this fight playing out so publicly, something is going to break.
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