Gordhan launches court bid to set aside Public Protector’s “rogue unit” report

The unlawfulness of the so-called “rogue unit’ at the South African Revenue Service (Sars) is fake news, Public Enterprises Minister Pravin Gordhan said in court papers on Wednesday.

Gordhan is challenging Public Protector Busisiwe Mkhwebane’s recent report that found, among other things, that he deliberately misled Parliament when he did not disclose that one of the Guptas had been at a meeting he attended in 2010. The report also found that the investigating unit at Sars widely referred to as the Sars rogue unit was unlawfully formed — “in violation of South African intelligence prescripts”.

Gordhan wants the high court to set aside the report and declare that advocate Busisiwe Mkhwebane, both in her professional and personal capacity, acted dishonestly or recklessly in making her report — because she knew her findings were false “or were reckless as to their truth”. In the meantime, he has asked the court to urgently suspend the remedial action directed in the report until the case has been fully argued.

READ IN FULL: Court papers, affidavits in Gordhan, Public Protector battle

In a fiery affidavit, Gordhan said the persistent claim that there was a rogue unit at Sars was a lie. “It is a falsehood that is repeated and repeated and repeated by some in hope that someone will believe that there must be something there.”

He said there was no legal obstacle to Sars establishing investigating units to strengthen tax compliance; and that was all that happened in 2007 when the so-called rogue unit was established. Although the idea was to initially house the unit inside the National Intelligence Agency [which is now known as the domestic branch of the State Security Agency], when the intelligence agency lost its appetite for this, the unit remained in Sars all totally lawful, he said.


READ MORE: Public Protector finds Gordhan violated Constitution in setting up Sars ‘rogue unit’

He said neither the Constitution nor the National Strategic Intelligence (NSI) Act — the two laws referred to by Mkhwebane — prohibited Sars from setting up the unit. Section 209 of the Constitution dealt with intelligence agencies and the NSI Act dealt with intelligence collected for the protection of national security — they did not apply to Sars’ powers to investigate tax compliance.

He said Mkhwebane “provides no reason why she stubbornly relies on an interpretation of section 3 of the NSI Act that is widely considered to be utterly wrong. She provides no reasons why she supports this doomed interpretation, which raises further questions as to her motive here.”

Gordhan said Mkhwebane had “wittingly or unwittingly” allowed her office and her powers to become “weaponised” — in the battle between those who wish to defeat the constitutional project and those who want to defend it and protect the country from state capture.

She had also demonstrated bias in her investigation, he said. Her final report contained no sign that she had meaningfully considered his submissions.

On Mkhwebane’s finding that he misled Parliament, Gordhan said he had been “perfectly honest” in his parliamentary response in 2016. He simply had not remembered a Gupta being present at the 2010 meeting.

Mkhwebane had no evidence to counter what he said — only saying it was implausible given the prominence of state capture at the time. But state capture was not prominent back in 2010 when the meeting had occurred, said Gordhan. The finding was baseless, he said.

READ MORE: Gordhan is not being harassed — Public Protector

This is the second report of Mkhwebane’s that Gordhan has taken on review. He has also gone to court over her finding that Gordhan had improperly approved an early pension payout, with full benefits, to former deputy Sars commissioner Ivan Pillay. In Wednesday’s affidavit, Gordhan said that when the two reports are read together, it was clear Mkhwebane was “seeking to achieve my removal from office” — for a political objective.

READ MORE: Gordhan — Mkhwebane’s report ‘politically motivated and riddled with errors’

Read Gordhan’s court papers below:

Pravin Gordhan Court Papers by on Scribd

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Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

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