Mkhwebane suffers another crushing defeat
WITH the focus on the coronavirus pandemic, we should not lose sight of other developments taking place.
One of these was Public Protector Busisiwe Mkhwebane’s latest crushing defeat in court.
Mkhwebane went to court, insisting that Sars give her access to former president Jacob Zuma’s tax records.
It is not just that the court struck down Mkhwebane’s inflated sense of her powers as public protector, but the manner in which it did so that gives us cause to again point out her complete unsuitability to fill the gap left by Thuli Madonsela.
Judge Peter Mabuse was unequivocal in declaring “the public protector’s subpoena powers do not extend to taxpayer information”, which is almost universally held to be confidential.
He went further in emulating an earlier High Court ruling in the South African Reserve Bank/absa matter, hitting her with a punitive costs order, in this instance of about R1 million.
The magnanimous Sars paid for senior legal minds to advise Mkhwebane on the matter; their conclusion was that it would be illegal for Sars to hand over the information she sought. The experts advised that she instead approach the High Court to find out if her powers supersede the Sars Tax Administration Act.
Typically, she ignored their advice and tried to subpoena Sars to produce the information.
Judge Mabuse said Mkhwebane’s persistence in issuing the subpoena despite Sars’s explanation and her ignoring legal advice from senior and junior counsel, “tells us something about the public protector”.
Questioning her knowledge of the law, he said the public protector was required to be an advocate because “she would understand the law and she would apply it in her daily conduct. She would not adopt a devil-may-care attitude in the face of the law, advice and genuine legal opinion”.
Mkhwebane’s proclivity to “operate out of the bounds of the law”, her “deep-rooted recalcitrance to accept advice from senior and junior counsel”, and acting unreasonably arbitrarily and in bad faith demonstrated that she either misunderstood the law or simply ignored it.
This makes it more imperative that Parliament expedites the process to remove her from office as soon as the Covid-19 lockdown is over and the National Assembly resumes sittings.