In another blow that may strengthen efforts to remove public protector Busisiwe Mkhwebane from office, another court has denounced one of her reports.
The Pretoria high court’s decision to set aside Mkhwebane’s findings on the so-called rogue unit at the SA Revenue Service (Sars) also brings to an end one of the most notorious episodes of alleged state capture during the Jacob Zuma era, which led to the destruction of a once world-class institution and contributed to the country being saddled with a VAT increase.
The three judges were scathing of Mkhwebane’s conduct, describing her report as a work of fiction. It’s the fourth high-profile investigation by the public protector to be found wanting by a court. Her latest report was without foundation and wrong in law and she showed bias, the high court found, using language reminiscent of earlier findings.
The adverse finding against her comes at a time when a panel headed by retired Constitutional Court justice Bess Nkabinde is assessing whether there is a prima facie case to justify an inquiry into her fitness to hold office. Mkhwebane tried to put a stop to this process in court but was unsuccessful.
Her four-year-long tenure has been marked by controversy and a relentless pursuit of President Cyril Ramaphosa and public enterprises minister Pravin Gordhan. Her report on Ramaphosa’s CR17 campaign and accusations of money laundering was also found wanting.
Her choice of targets led to accusations that she was using the office to fight factional battles in the ANC. Her time in office is due to end in 2023. She replaced Thuli Madonsela in 2016.
Purge of executives
Gordhan took the public protector’s report on review after she found that he had violated the constitution when he set up the investigative unit at Sars when he was commissioner.
The rogue unit narrative was used as an excuse to purge senior executives and disband the tax agency’s executive committee when Tom Moyane took over as commissioner at the end of 2014.
A controversial report on the unit penned by advocate Muzi Sikhakhane, who has been representing Zuma in his battle to avoid answering questions at the Zondo commission, was used to justify the purge at Sars. It has also been discredited. Current commissioner Edward Kieswetter effectively binned it in November.
Mkhwebane’s report came even after a commission of inquiry headed by retired judge Robert Nugent in 2018 found that the unit was not unlawfully established. Another retired judge, Frank Kroon, who was appointed by the Treasury to review the Sikhakhane report, apologised to the unit’s former members and their families after it emerged that his committee had merely rubber-stamped the report.
The high court on Monday found that Mkhwebane had "inexplicably ignored" Nugent’s report in reaching her conclusions, as well as the apology and retraction of the adoption of the Sikhakhane panel’s findings by Kroon.
"We are satisfied that the report is the product of a wholly irrational process, bereft of any sound legal or factual basis," a full bench of the high court said. The court said the report could not stand and must be set aside.
Mkhwebane was found to have ignored the bulk of the evidence provided to her and only considered allegations, however discredited and untested, that she believed supported the continuation of the rogue unit narrative and dismissed or ignored everything that proved the lawfulness of the unit. She had not undertaken a fair and credible investigation.
"Had the public protector undertaken a fair and credible investigation and considered the extensive body of evidence in an open-minded manner, the report may have been an opportunity to confirm the facts and the truth thereof," it said.
"Instead, she allowed her important office to be used to try to resuscitate a long-dead fake news propaganda fiction."
It also found that Mkhwebane was biased against Gordhan and former Sars official Ivan Pillay, who was forced out during the period and was, together with colleagues Andries Janse van Rensburg and Johann van Loggerenberg, subjected to criminal charges that were subsequently dropped.
‘Propaganda fiction’
"It is clear that she approached her investigation with a preconceived notion, determined to make adverse findings against minister Gordhan and Mr Pillay, thereby promoting the false rogue unit narrative."
The judges also made a punitive cost order against Mkhwebane, who will now have to pay 15% of the costs out of her own pocket.
Mkhwebane’s office said the public protector would study the grounds upon which the court set her report aside, with a view of "exploring the options available to her".
Sars called the ruling a "seminal judgment that brings necessary closure to the unfortunate distracting narrative surrounding the establishment and functioning of the Sars high-risk investigation unit".
Gordhan’s lawyer, Tebogo Malatji, said the judgment was an indictment on Mkhwebane. The findings "vindicate our client and support the evidence he tendered at the Zondo commission", he said.
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