Protector takes spy minister to court

The public protector, Busisiwe Mkhwebane, has taken state security minister Dipuo Letsatsi-Duba to court over what she alleges is unlawful interference in her SA Revenue Service (Sars) “rogue unit” investigation.

Mkhwebane’s attorney confirmed to Business Day on Thursday that she had filed an application against LetsatsiDuba in the high court in Pretoria, following a tense standoff during which she and the minister brought criminal charges against each other.

Her spokesperson Oupa Segalwe, said Mkhwebane declined to comment.

Mkhwebane is investigating allegations of improper conduct; a violation of the executive ethics code; and irregular and unlawful activities by public enterprises minister Pravin Gordhan related to the “rogue unit” when he was head of the tax agency. This is despite other investigations having found that the formation of the unit had been lawful.

Gordhan’s spokesperson, Adrian Lackay, has previously described Mkhwebane’s probe as “another example of a fightback campaign to disrupt

efforts to uncover and prosecute instances of malfeasance and corruption in various entities of government”.

Gordhan, who was fired by former president Jacob Zuma on March 17, has characterised the probe as being part of a fightback by agents of state capture and opponents of President Cyril Ramaphosa, who has made cleaning up state institutions the centrepiece of his presidency.

Retired judge Robert Nugent, who chaired an inquiry into Sars, found that former commissioner Tom Moyane, a Zuma appointee, had received a legal opinion from senior counsel indicating that the establishment of the high-risk investigation unit, or “rogue unit”, was not unlawful.

Nugent also found that the establishment of the unit had been lawful. Moyane was subsequently fired by Ramaphosa.

An advisory committee headed by retired judge Frank Kroon had reviewed the unit and found that it was illegally established. However, in a spectacular about-turn, Kroon told the Nugent inquiry in 2018 that his committee’s findings were “incorrect”.

Mkhwebane’s court case comes after Letsatsi-Duba criticised the leaking of a 2014 inspector-general of intelligence report into the “rogue unit” as “prejudicial to the national security interest”, and demanded that Mkhwebane return all copies of the document immediately.

She argued 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]”.

Mkhwebane in turn argued that the Constitutional Court ruling in the Nkandla report case made it clear that her office “can investigate any conduct in state affairs”, and accused the minister of seeking to unlawfully interfere in her work.

The report at the heart of this legal battle was compiled by the late Faith Radebe, under the orders of then state security minister David Mahlobo, and reportedly found that there was evidence warranting a criminal investigation against Gordhan and other former Sars officials.

Mkhwebane has also demanded that Gordhan answer several questions, linked to his tenure as Sars commissioner.

Following a request by Gordhan, Mkhwebane granted him an extension to submit his affidavit and supporting evidence.

Mkhwebane was due to hold a news briefing on Monday to release “investigation reports”, her office said in a statement.