A major court showdown looms between public protector Busisiwe Mkhwebane and Pravin Gordhan as the public enterprises minister prepares to challenge her report on the so-called SA Revenue Service’s (Sars’s) "rogue unit".
Mkhwebane called for criminal prosecution against Gordhan on Friday when she released a report on her findings that Gordhan had helped to set up and run the unit to spy on politicians in violation of the constitution. Gordhan was the head of the tax collection agency at the time.
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.
This is the second report in which Mkhwebane made adverse findings against Gordhan.
The latest iteration is likely to add fuel to speculation that Mkhwebane is using her office to fight factional battles within the ANC, which is split between those supporting President Cyril Ramaphosa’s more liberal agenda and those still flying the flag for his predecessor Jacob Zuma.
The report is also a victory for the EFF, whose deputy president Floyd Shivambu is among those who filed a formal complaint about Gordhan’s role in the establishment and running of the unit. The EFF is likely to use the findings to pile more pressure on Ramaphosa to remove Gordhan from the national executive.
However, there have also been calls for a parliamentary process to remove Mkhwebane, whose competence was questioned after a number of embarrassing court setbacks.
Mkhwebane also found that Gordhan had misled parliament when he said he did not recall meeting the Guptas, the wealthy family at the centre of one of post-apartheid SA’s biggest scandals. The protector directed Ramaphosa to take disciplinary action against Gordhan.
She has also directed the national police commissioner to investigate, within 60 days, the conduct of Gordhan, former Sars deputy commissioner Ivan Pillay and other officials involved in the Sars unit for violating the constitution and the National Strategic Intelligence Act.
The establishment of the unit has been haunting Gordhan for years but he may take comfort in the fact that several other investigations, including the Nugent commission of inquiry into Sars, have cleared him of wrongdoing. In 2017, auditor KPMG withdrew the findings and conclusions of a Sars-commissioned investigation of the "rogue unit".
Gordhan instructed his legal team to scrutinise Mkhwebane’s report upon receipt, and prepare an urgent review. He said it was apparent that the public protector continued to "get the facts wrong, get the law wrong and is demonstrably biased".
"The constitution, in section 181, envisages the office of the public protector to be independent, impartial, dignified and effective. To date, in this matter, it has failed in all four respects."
In a separate investigation the findings of which were released in May, Mkhwebane found that Gordhan had violated the constitution when he approved Pillay’s early pension payout. Gordhan is also taking that report on judicial review.
Mkhwebane said the latest investigation into the unit had been conducted under extremely difficult conditions and that she was concerned about the treatment she received from some of the respondents, which was tantamount to contempt.
"There has been a continued tone of resistance and undermining of the functions and integrity of the public protector as a person and as an institution," she said.
"It is for the abovementioned concern that I wish to indicate that the office of the public protector is declared by the constitution to be ... independent and impartial, and the constitution demands that its powers be exercised ‘without fear, favour or prejudice’."
The public protector also made findings against Pillay on Friday, among them that his appointment as deputy Sars commissioner and subsequently as commissioner was irregular and unconstitutional.
She found that Pillay did not have the qualifications for the job and that the position of deputy commissioner was a new position formulated through a new business model.
Mkhwebane found that the sole use of the new business model as a blanket benchmark for the appointment of Pillay was irregular and violated the constitution.
Werksmans Attorneys, on behalf of Pillay, said once the legal team had studied the public protector’s report, it would also institute a judicial review.
"Mr Pillay emphatically denies all of the findings which are factually and legally flawed," Werksmans’ Bernard Holtz said.
"The findings seem to demonstrate that either no, or at best very little investigations were conducted."
He said some of the findings demonstrated a complete lack of understanding of Sars, some of the findings were "patently false" and that it was apparent that misinformation was given to Mkhwebane.
Meanwhile, Mkhwebane is finalising her long-awaited investigation into whether Ramaphosa had misled parliament over a R500,000 donation to his internal ANC presidential election campaign by Gavin Watson, CEO of corruption-accused facilities management company Bosasa, now African Global Operations.
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