Pravin Gordhan lodges court review of Busisiwe Mkhwebane’s Sars report

Public enterprises minister Pravin Gordhan lodged an urgent application on Wednesday to interdict the enforcement of the remedial action in public protector Busisiwe Mkhwebane’s report on the SA Revenue Service’s so-called rogue unit. 

Gordhan, in the first part of his application, wants the high court in Pretoria to suspend the public protector’s remedial orders and interdict her from enforcing them, until a judicial review of her report is concluded. 

He also wants the court to review and set aside the report and have it declared unlawful, unconstitutional, irrational and invalid. 

Last week, Mkhwebane recommended that President Cyril Ramaphosa take disciplinary action against Gordhan, and directed the national police commissioner to investigate his conduct and that of other officials involved in the unit.

The public protector found that the establishment of the unit was unlawful and that Gordhan, who was Sars commissioner at the time, had violated the constitution.

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.

Gordhan is arguing that the public protector misunderstood the law. He said there was no legal obstacle to Sars establishing an investigative unit to deal with the tax implications of organised crime and illicit trade like cigarette smuggling.

In his affidavit to the court, Gordhan said the establishing of investigation units to strengthen tax compliance and enforcement was in accordance with international best practice.

“The investigating unit lawfully established at Sars investigated tax rogues. There is nothing rogue about its establishment,” he said.

“So why is there a persistent claim to the contrary? It is a lie. It is ‘fake news’. It is a falsehood that is repeated and repeated by some in the hope that someone will believe that there must be something there,” Gordhan said.  

The minister said there was a fightback being waged by his political opponents, who sought to taint him and other leaders. He accused the EFF of being prominent players in the campaign.

“It appears that the public protector, whether wittingly or unwittingly, has permitted her office and its extensive powers, to be weaponised in this political war against ‘unity and renewal’,” Gordan said in his affidavit, adding that he was bringing the review of her report so that the rule of law could be upheld and the constitutional mandate of the public protector was observed and restored. 

In the second part of his application, Gordhan wants the high court to declare that Mkhwebane personally acted in breach of her constitutional duties to be independent and to exercise her powers and perform her functions without fear, favour or prejudice. 

He also wants the court to find that in her personal capacity, Mkhwebane was dishonest or alternatively made her findings against him recklessly. 

Gordhan has asked the court to make a personal cost order against Mkhwebane.

“Whilst I have great respect for the office of the public protector, I doubt the competence, integrity, legal literacy and constitutional grasp of its incumbent of her powers, duties and functions,” he said. “Instead of dealing with the pressing complaints of citizens, she is using the office for ulterior motives or the political motives of others.”

This is the second judicial review Gordhan has lodged against Mkhwebane’s report, where he has questioned her motives and her competency.

He said her credibility and competence had already been negatively pronounced on by courts. This was a reference to two other judgments setting aside her reports into the Vrede dairy farm matter and the apartheid-era loan given by the SA Reserve Bank to Bankorp.

quintalg@businesslive.co.za