Gordhan heads to court to set aside Mkhwebane's 'rogue unit' report

Public enterprises minister Pravin Gordhan has launched an application before the high court in Pretoria seeking to interdict the implementation of the remedial action against him ordered by the public protector.
Public enterprises minister Pravin Gordhan has launched an application before the high court in Pretoria seeking to interdict the implementation of the remedial action against him ordered by the public protector.
Image: FREDDY MAVUNDA

Public enterprises minister Pravin Gordhan lodged an urgent application on Wednesday to suspend and interdict the enforcement of the remedial orders by the public protector, and also to review her report she issued last Friday.

On Friday, public protector Busisiwe Mkhwebane, in a report on her investigation into the establishment of the Sars "rogue unit", found that the setting up of the unit, approved by Gordhan, was in violation of the Constitution.

Gordhan’s lawyer Tebogo Malatji said on Wednesday that there were a number of reasons why he is challenging the report in the Pretoria High Court.

In terms of the Public Protector Act, the public protector must justify or provide “special circumstances” to entertain any complaints regarding events or conduct that is more than two years old.

“Despite repeated requests for an explanation on what ‘special circumstances’ she relied on for this investigation of matters from as far back as 2007, none has been forthcoming,” Malatji said.

Malatji, in a statement, said Mkhwebane misunderstood the law to arrive at a pre-determined outcome relating to the powers of intelligence services.

“There is no legal obstacle to Sars establishing an investigative unit to deal with the tax implications of organised crime and illicit trade like cigarette smuggling.

“In fact, this capacity is being re-established thanks to the findings and recommendations of the Nugent Commission of Inquiry.”

Malatji also said the report ignored facts, and their significance, to reach its findings regarding the establishment of the Sars investigative unit.

“Among these are the discredited Sikhakhane panel report and its erroneous legal reasoning, the Sunday Times’ apology in April 2016 for its reporting relating to the Sars unit, Judge Kroon’s apology to the members of the unit for not interrogating the issues and making wrong findings, KPMG’s withdrawal of its report and refunding of the fees earned for it.”

Gordhan's application will be in two parts.

Part A will ask the court to declare that the public protector’s remedial orders are suspended, until the judicial review of the report is concluded.

It will also seek to interdict the Office of the Public Protector and Mkhwebane from enforcing the remedial orders until a judicial review of the report is concluded.

Part B will seek orders declaring, among others, that the public protector, and Mkhwebane personally, acted in breach of their constitutional duties to be independent and to exercise their powers and perform their functions without fear, favour or prejudice.

Part B will also seek an order declaring that the public protector and Mkhwebane personally, dishonestly or, alternatively, recklessly made her findings in the report against Gordhan, in that they knew that the findings were false or were reckless as to their truth.

Gordhan would also ask that the public protector, and Mkhwebane personally, be ordered, jointly and severally, to pay the applicant’s cost on the scale of between attorney and client.


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