Busisiwe Mkhwebane’s credibility and conduct again questioned in court
If Pravin Gordhan succeeds in having findings against him set aside, it will be the fourth high-profile investigation by the public protector to be found wanting
Busisiwe Mkhwebane's credibility and conduct was once again called into question during a court application to have her report on the so-called rogue unit at the SA Revenue Service (Sars), which allegedly spied on politicians, set aside.
On Thursday, the high court in Pretoria heard arguments in the application brought by public enterprise minister Pravin Gordhan, after Mkhwebane found that he had violated the constitution when he set up the unit at Sars.
The rogue unit was a narrative used as an excuse to purge senior Sars executives, as well as disband the tax agency’s executive committee when Tom Moyane took over as commissioner at the end of 2014.
If Gordhan succeeds in having the findings against him set aside, it would be the fourth high-profile investigation by the public protector to be found wanting.
Mkhwebane is already fighting another legal battle, to halt the possibility of a parliamentary inquiry into her fitness to hold office. Advocate Wim Trengove, for Gordhan, argued that Mkhwebane was abusing her powers as the public protector.
“No-one has done more harm to the standing and esteem of the office of the public protector than the incumbent, and she has done so by serious abuses of power,” he said.
This had compelled “her victims” to go to court and seek redress against her, and the courts have “found her guilty of this most egregious conduct” a number times, Trengove said referring to other adverse findings against Mkhwebane.
He argued that Mkhwebane did not have the jurisdiction to investigate the complaint because it was a matter that was more than two years old, and according to legislation could not be investigated unless under special circumstances.
Trengove said that Mkhwebane failed to show what the special circumstances were, despite numerous requests for those.
However, advocate Thabani Masuku, for the public protector, argued that the only reason Gordhan had raised the issue of jurisdiction was to “fob off” Mkhwebane and ensure that the matter was never investigated.
He said Mkhwebane had to investigate the matter to ascertain whether there were special circumstances, but Trengove argued that the legislation stated that the public protector could not “entertain” a matter older than two years, which means she should not have investigated it at all.
Masuku accused Gordhan of trying to frustrate the process and that as a member of the executive he was obliged to support and co-operate with the public protector.
Trengove also accused Mkhwebane of having no evidence against Gordhan and that in her final report, did not analyse the evidence but merely cited it and then came to a conclusion without justifying it.
He argued that there was no evidence in front of Mkhwebane that Gordhan had established the Sars unit illegally. He said there were accusations that the unit had misconducted itself but that there was no suggestion that Gordhan authorised this or was complicit in this.
Trengove raised questions around whether Mkhwebane had also lied in her final report in relation to the 2014 inspector-general of intelligence (IGI) report, which found that Sars had created a covert unit using covert and intrusive methods in direct contravention of its mandate. This report was reviewed and set aside in June by the courts.
Trengove argued that Mkhwebane had ordered that the minister of state security implement the recommendations in the IGI report, despite alleging that she had not seen it.
He said this showed “disgraceful misconduct” in that Mkhwebane either lied about having a copy of the report or abused her power by ordering that its recommendations be implemented without knowing what was in it.
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