Gordhan lawyers challenge Mkhwebane's report again - this time on 'rogue unit'

Pravin Gordhan.
Image: REUTERS/Rogan Ward

Public enterprises minister Pravin Gordhan’s lawyers are working around the clock to finish his court application to review and possibly set aside public protector Busisiwe Mkhwebane’s findings on his role in the establishment of the so-called "Rogue Unit" in the South African Revenue Service (Sars).

Mkhwebane on Friday revealed that the intelligence unit, which she said was created during Gordhan’s time as the commissioner, did not have the authority or mandate to establish such a body.

The unit, whose existence has been questioned, according to Mkhwebane, it “gathered information covertly” and operated unlawfully because  only the State Security Agency (SSA) has the mandate to establish such an operation.

“In terms of the national legislation Sars is not mentioned as one of the national intelligence structures established in terms of the national structure intelligence act and can only work with other law enforcement agencies within the principles of co-operate governance in achieving it,” Mkhwebane said in her report.

She said that the rogue unit was established under the guidance of Ivan Pillay who was the general manager of enforcement and risk division at the time without involving SSA – then known as National Intelligence Agency.

She said that as the commissioner of Sars, Gordhan was the accounting officer and that he was aware of the intelligence unit.

“As the accounting officer, Mr Gordhan should have been aware, and I believe was aware, that the unit had already started operating. Mr Pillay reported directly to Mr Gordhan as commissioner of Sars.

“The establishment of the unit, with the approval of Mr Gordhan as the accounting officer, was in breach of section 209 of the constitution, terms of only the president may such a covert information gathering unit,” said Mkhwebane.

Gordhan’s spokesperson Adriaan Lackay told SowetanLIVE on Monday that they have tasked lawyers to bring a court application this week.

This will be Gordhan’s second review application against Mkhwebane.

The first one was regarding her report which found that he unlawfully approved Pillay’s early retirement payout at the expense of taxpayers.

“We have instructed lawyers to lodge an urgent review and we have to let the lawyers complete what they need to do. These are serious things and we need to apply ourselves,” said Lackay.

Gordhan’s lawyers, Malatji & Co, last week accused the Mkhwebane’s office of failing in its duty to be independent, impartial, dignified and effective.

The law firm said: "From today’s [Friday] announcement, with respect to Minister Gordhan and his tenure as the former commissioner of Sars, it is apparent that the public protector continues to get the facts wrong, get the law wrong and is demonstrably biased.”

Mkhwebane said  President Cyril Ramaphosa must take disciplinary action against Gordhan violating the constitution and the executive ethics code within 30 days.

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