Mkhwebane will oppose Gordhan’s review application

Public protector Busisiwe Mkhwebane says she has not yet been formally served with court papers, but will defend her report into the Sars “rogue unit”. 

On Wednesday, public enterprises minister Pravin Gordhan  lodged an urgent application in the High Court in Pretoria to interdict the enforcement of the remedial action in Mkhwebane’s report and to have the report reviewed and set aside. 

Her spokesperson Oupa Segalwe said she would consult her legal team on whether to oppose Gordhan's interdict application as well.

“In principle the public protector wouldn't oppose this kind of interdict, but every matter is evaluated on its unique facts and merits.” 

Mkhwebane said she accepts the review is part of the prescribed process available to aggrieved parties, but she also expressed disappointment at how the “court application is cloaked in the indignity of personal insults”.

“It is our considered opinion that the emotive language and personal insults and blatant lies or innuendos are meant to divert attention from the real issues and the findings,” she said.

The public protector said she would only be commenting on the facts of the matter, adding that engaging with the personal insults was “below the dignity” of the high offices of responsibility she and Gordhan occupied. 

Mkhwebane is under intense scrutiny following recent court decisions to set aside some of her reports. There has also been speculation that she is using her office to fight factional battles within the ANC. 

Last week, the public protector found that the establishment of the Sars investigative unit was unlawful and that Gordhan, who was Sars commissioner at the time, had violated the constitution. In her remedial action, she directed President Cyril Ramaphosa to take disciplinary action against Gordhan, and directed the national police commissioner to investigate his conduct and that of other officials involved in the unit.

Gordhan, in his application, is arguing that the public protector misunderstands the law. He said there is no legal obstacle to Sars establishing an investigative unit to deal with the tax implications of organised crime and illicit trade, such as cigarette smuggling.

In his affidavit to the court, the minister said it appears the public protector, whether wittingly or unwittingly, has allowed her office and its powers to be “weaponised” in a political war.

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

“While 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.”

quintalg@businesslive.co.za