Public protector’s spats with ministers reach boiling point
The stand-off between public protector Busisiwe Mkhwebane, state security minister Dipuo LetsatsiDuba and public enterprises minister Pravin Gordhan over Mkhwebane’s SA Revenue Service (Sars) “rogue unit” investigation has reached boiling point
with all three threatening or considering legal action.
Mkhwebane last week used her office’s legal powers to demand that Gordhan answer 12 questions, predominantly linked to his tenure as Sars commissioner, by next Tuesday. Should he fail to do so, she said he will potentially be guilty of an offence under the Public Protector Act.
Gordhan’s lawyers are understood to have raised objections to this. His spokesperson, Adrian Lackay, described Mkhwebane’s probe as “another example of a fightback campaign to disrupt efforts to uncover and prosecute instances of corruption”.
Mkhwebane’s office has dismissed these accusations and insists her investigation into Gordhan’s role in the unit, as well as claims that he instructed Sars to “pursue the tax affairs” of EFF leader Julius Malema, is “legitimate”.
According to retired judge Robert Nugent, who chaired an inquiry into Sars, the former commissioner of the tax body, Tom Moyane, received a legal opinion from senior counsel indicating that the establishment of the high-risk investigation unit was not unlawful.
“I find no reason why the establishment and existence of the unit was, indeed, unlawful, and I am supported in that by an opinion given to Mr Moyane by leading senior counsel,” Nugent said in his interim report.
Correspondence that Business Day has seen revealed how Letsatsi-Duba slammed the
leaking of a 2014 inspector-general of intelligence (IGI) report into the unit as “prejudicial to the national security interest”, and demanded that Mkhwebane immediately return all copies of the document.
The report in question was compiled by the late IGI, Faith Radebe, under the orders of then state security minister David Mahlobo, and reportedly found there was evidence warranting a criminal investigation against Gordhan and other former Sars officials, including Ivan Pillay.
Mkhwebane says she obtained the report, which EFF MP Floyd Shivambu and Moyane have filed as part of separate legal battles against Gordhan, via an “anonymous source”.
In a letter sent to Mkhwebane in February, Letsatsi-Duba stresses “the IGI does not have a legal mandate to investigate the SA Revenue Service, in terms of the Intelligence Services Oversight Act Sars-related activities could therefore not have been commissioned by the former minister of state security”.
In other words, LetsatsiDuba raises doubts that the report, which Mkhwebane is now considering as part of her investigation into Gordhan, has any legal standing.
She adds that the public disclosure of “classified information in the report would violate the rights of persons associated with Sars and the SSA [State Security Agency], potentially disrupting the SSA’s operations and impairing its intelligencegathering methods, and threatening its operational co-operation with domestic institutions”.
In response, Mkhwebane who was previously employed by the SSA hit back at LetsatsiDuba for the “threatening and condescending tone of your letter”, which she describes as “regrettable/unfortunate”.
Mkhwebane argues that the Constitutional Court ruling in the Nkandla report case makes it clear that her office “can investigate any conduct in state affairs” and accuses Letsatsi-Duba of seeking to unlawfully interfere in her work.
The public protector tells the minister that unless she stops this alleged interference, she will have no choice but to seek an order that Letsatsi-Duba has shown contempt for her office and violated the constitution.
In March she laid criminal charges against Letsatsi-Duba after the minister laid charges over the leaking of the report. The Hawks have not responded to requests for comment on the status of these cases.
With Mkhwebane also investigating whether President Cyril Ramaphosa deliberately lied to parliament, intervention from his office in this unfolding saga would be unwise.
If Gordhan openly defies Mkhwebane or if law enforcement act on any of the cases opened as a consequence of this stand-off, it could result in a constitutional crisis that arguably has been brewing for some time.
The rogue unit investigation saga has become a giant and farreaching game of legal chicken, in which the constitutionally protected status of the public protector is being subjected to unprecedented scrutiny and challenge. It is likely that with this fight playing out so publicly, something is going to break.