Mkhwebane withdraws ConCourt appeal on Sars Rogue Unit

Public protector Busisiwe Mkhwebane.
Public protector Busisiwe Mkhwebane.
Image: Esa Alexander

Public Protector Busisiwe Mkhwebane has withdrawn her intention to appeal the High Court judgment which suspended remedial action against public enterprise minister Pravin Gordhan in SA Revenue Service (Sars) rogue unit matter.

Following the High Court judgment which suspended the remedial action against Gordhan, Mkhwebane sought to petition the Constitutional Court to appeal the decision. She has now withdrawn the appeal.

High Court Judge Sulet Potterill delivered a damning judgment against Mkhwebane’s remedial action saying they were “nonsensical”, “vague” and “contradictory”.

Mkhwebane found that Gordhan deliberately misled parliament in failing to disclose details around the establishment of the rogue unit which she said was in violation of the intelligence prescripts as Sars had no authority to establish such a unit.

Mkhwebane then ordered President Cyril Ramaphosa to take disciplinary action against Gordhan within 30 days of the report but also send her an implementation plan for her approval within the same 30 days.

Potterill, who poked holes in Mkhwebane’s entire report, said that upholding the remedial action would cause irreparable harm on Gordhan himself.

“Being prosecuted, disciplined and investigated most certainly constitutes harm and the harm may be irreparable and irreversible by the time the review application is heard, especially so if the review application is successful,” said Judge Potterill at the time.

“There is no harm to the PP or her office if the remedial action is suspended pending review.”

Responding to the judgment, Mkhwebane accused Judge Potterill of overreaching by dealing with the merits of the review application. She also took issue with the language used in the judgment.

“In addressing matters she had not been called upon to hear and pronouncing on issues that were not placed before her, Judge Potterill effectively tied the hands of and pre-empted the outcome of the review court,” said Mkhwebane through her spokesperson Oupa Segalwe.

“Also, of concern to the Public Protector is Judge Potterill’s use of language that is unbecoming of a judicial officer and which does not accord with the decorum of the court.”

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