Top court denies leave to appeal ‘rogue unit’ ruling to Busisiwe Mkhwebane

The Constitutional Court has unanimously dismissed a last-ditch attempt by suspended public protector Busisiwe Mkhwebane to appeal against a High Court order, which had set aside her report into an alleged “rogue unit” at the SA Revenue Service (Sars).

The apex court’s order on Thursday is the final word on the report, which the Pretoria high court described as “fail[ing] at every point”.

The Constitutional Court declined leave to appeal against the order that set the report aside, saying an appeal had “no reasonable prospects of success”.

Mkhwebane’s report made a number of findings, including that an investigating unit of Sars established in 2007 — widely known as the “rogue unit” — was unlawfully formed and conducted illegal intelligence-gathering operations.

Among the remedial actions Mkhwebane directed was an instruction to the president to take disciplinary action against public enterprises minister Pravin Gordhan within 30 days. Another was that the police should investigate what she said was a breach of the constitution and the National Strategic Intelligence Act.

The remedial action was first interdicted by the Pretoria high court in July 2019 by judge Sulet Potterill, then set aside in December 2020.

Judges Selby Baqwa, Annali Basson and Leonie Windell said they were not persuaded that the investigating unit was unlawfully formed.

This conclusion was wrong in law, they said.

In a scathing judgment setting it aside, the three judges said Mkhwebane had committed the “most egregious failure … to understand and honour the most basic requirements of the office she occupies”.

“It is plain that the public protector has approached this investigation with an unwavering commitment to her own preconceived views and biases,” they said.

When Mkhwebane sought to appeal to the Supreme Court of Appeal (SCA), her application was rejected.

When she sought a reconsideration of this order by then-president of the SCA Mandisa Maya, this was declined, with Maya saying there were “no exceptional circumstances warranting reconsideration or variation” of the decision declining leave to appeal.

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