Mkhwebane used ‘mysterious’ sources
In court papers, minister asks why public protector investigated Sars unit after it had already been cleared
Public protector Busisiwe Mkhwebane wrongly relied on mysterious anonymous sources in her investigation into the so-called rogue unit at the SA Revenue Service (Sars), public enterprises minister Pravin Gordhan says. In papers lodged with the high court in Pretoria, Gordhan says the public protector failed to provide any evidence to justify why she investigated the Sars investigative unit, despite its being established more than a decade ago.
Public protector Busisiwe Mkhwebane wrongly relied on mysterious anonymous sources in her investigation into the so-called rogue unit at the SA Revenue Service (Sars), public enterprises minister Pravin Gordhan says.
In papers lodged with the Pretoria high court, Gordhan says the public protector has failed to provide any evidence to justify why she investigated the Sars investigative unit, despite its being established more than a decade ago.
This was well outside the normal two-year limit for investigation placed on her office by the Public Protector Act. “This means that the public protector unlawfully undertook to investigate and issued the report … why the persistence?” Gordhan says in a supplementary affidavit.
In July 2019, Mkhwebane released a report on Gordhan’s involvement with the investigative unit, which became known as the “rogue unit” following a series of now retracted Sunday Times articles. She found that the unit had been unlawfully established by Gordhan while he was Sars commissioner.
Gordhan maintains that report is irrational, unlawful and unconstitutional and was compiled with an “ulterior purpose”. He further contends that the Sars report is defined by procedural unfairness, errors of law and fact, and a complete failure to properly investigate.
Initially, Mkhwebane said there were “special circumstances” that justified the Sars probe because the surveillance equipment she said was obtained by the “Sars rogue unit” was still being illegally used.
Gordhan disputes any suggestion that the equipment was used for illegal purposes and hit out at Mkhwebane for claiming that the source of this claim was anonymous. “This excuse does not bear scrutiny,” Gordhan says. “It is inconceivable that the public protector received such critical information but did not keep any record of it and did nothing to verify it and did not act on it.
“This approach by the public protector also echoes, and enables, the discredited fake news political campaign run by the EFF, presumably in the hope of distracting public attention from frequent media reports containing allegations of their own corruption.”
The record of evidence produced by Mkhwebane has itself confirmed that there were no “special circumstances” to “justify spending her office’s scarce resources on this matter”, Gordhan says.
“The public protector ignores the critical fact that the overwhelming majority of her investigation concerned the exact same subject matter that had been scrutinised by several other bodies including her predecessor, and those bodies found no wrongdoing in any respect.”
Gordhan says it appears that Mkhwebane’s “entire legal reasoning” that the Sars investigative unit was unlawfully established was based on the findings of the Sikhakhane panel, “which is widely considered to be incorrect”.
Gordhan says Mkhwebane failed to file the full record of evidence she used to make her findings against him and had to be pushed on two occasions by his attorneys to hand over the information she allegedly relied on to make her adverse findings against him. “The total record ... comprises approximately 2,500 pages as opposed to the 1,000 plus pages initially disclosed by the public protector,” he states. “The public protector’s disdain for the rules of court is unfortunate and warrants censure.”