The outcome of the legal battle between Public Enterprises Minister Pravin Gordhan and public protector Busisiwe Mkhwebane will have profound implications for President Cyril Ramaphosa, the ANC and the public protector.
It has the potential to unsettle the renewal project that has characterised Ramaphosa’s administration thus far. Two adverse findings by Mkhwebane against Gordhan have already emboldened Ramaphosa’s opponents in his own party, and her investigation into the funding of his presidential campaign is still pending.
The Economic Freedom Fighters, who lodged the complaint against Gordhan, has not been secretive about its motives: “In Pravin Gordhan we want to show how corrupt the ANC is. We want to collapse the ANC, it’s no secret … Pravin is rotten … Ramaphosa is rotten … they come from a rotten tree called the ANC.” So party leader Julius Malema told supporters outside the state capture commission in November, while Gordhan testified inside.
The South African Revenue Service (Sars) “rogue unit” narrative has been used by tax dodgers, organised crime networks, the tobacco industry and certain politicians to discredit Sars.
Gordhan’s affidavit answering the report on Wednesday described it as “fake news”. He reiterated that the unit was lawfully established: “The unit was responsible for cracking down on organised tax crime and tax evasion … this commendable work came under attack in recent years from powerful businesspersons and politicians whose unlawful gains were being threatened by the work of the Sars investigative unit.”
The allegations about the so-called rogue unit have morphed since 2009 to suit political agendas. They were most insidiously used by then Sars commissioner Tom Moyane to purge senior staff members and to essentially capture the institution. That was the finding of the inquiry into tax administration, chaired by retired Judge Robert Nugent.
For Malema, the reckoning over the “rogue unit” is particularly sweet. He first released a dossier on the unit in early 2010, during his tenure as president of the ANC Youth League. He used a document authored by former Sars employee Mike Peega (who was later arrested for rhino poaching) to attack Gordhan and Sars. This period also marked the genesis of his own tax woes with the revenue collector. (According to a 2015 Sars statement, these have since been resolved.)
Nine years later, Mkhwebane’s report on the “rogue unit” mirrors the allegations contained in Malema’s dossier, with some spicy new additions courtesy of “evidence before [her]” and ostensibly a classified report commissioned by former state security minister David Mahlobo.
The EFF is likely to use Mkhwebane’s reports, which are being taken on legal review, to humiliate Gordhan in Parliament. The party walked out last month before his input on the State of the Nation debate, describing him as a “constitutional delinquent”.
Despite Malema’s declaration that the pursuit of Gordhan and Ramaphosa over party funding was aimed at collapsing the ANC, the EFF’s fight, as well as the public protector’s reports, are strongly supported by the faction aligned to former president Jacob Zuma and ANC secretary general Ace Magashule.
The “fightback” from those in the party poses a danger to Ramaphosa because it’s a high-stakes, all-or-nothing battle being waged by individuals who are implicated in corruption and state capture. The conduct of this group shows that if it cannot reclaim the ANC, it is comfortable with destroying the party.
Gordhan calls Mkhwebane’s report “malevolent, politically motivated” and “wrong in fact and law”, which gives Ramaphosa some room to breathe, in that he will not have to respond within the very tight time frames set out by Mkhwebane.
The public protector appears to have pinned Ramaphosa in a corner with her “rogue unit” finding — his handling of the report on Gordhan can be used against him once she releases her report on the R500 000 donation to his campaign for the ANC presidency by dodgy services company Bosasa. She has already served Ramaphosa with a section 7(9) notice, indicating that he is implicated in the probe.
The court battle with Gordhan will also have political implications for Mkhwebane. He bluntly accused her in his affidavit of having an ulterior motive. “It appears that the public protector, whether wittingly or unwittingly, has permitted her office and its extensive powers to be weaponised in this political war against ‘unity and renewal’,” he said. He goes for broke in what he asks the court to do: to declare that she acted in breach of her constitutional duties to be independent, that she is dishonest and made her findings recklessly.
If Gordhan succeeds, this could strengthen the push against Mkhwebane in Parliament.
The Democratic Alliance has launched a bid to have an inquiry into her fitness to hold office. But EFF spokesperson Mbuyiseni Ndlozi said the party would defend her against any attempts to remove her.
In the end, Mkhwebane’s fate will rest with the majority party, the ANC, but its parliamentary caucus is divided between those who support Ramaphosa and the group aligned to Magashule, though some senior leaders are known to be keen to see the back of the public protector.
Mkhwebane continues to display conviction and confidence, despite Gordhan’s blistering critique of her report, but it will now be up to the courts to decide. Yet another adverse finding against her may not be enough to remove Mkhwebane. That decision may well hinge on a political decision by the governing party.