The Public Protector has improperly intruded on the terrain of the National Prosecuting Authority (NPA) and the South African Police Service (SAPS) in her recent report on the so-called “rogue unit” at the South African Revenue Service (Sars), former deputy Sars commissioner Ivan Pillay said on Monday.
Pillay filed court papers supporting the court case instituted by Public Enterprises Minister Pravin Gordhan seeking to set aside the report and urgently interdict the remedial action she directs. In his papers, Pillay said he would also be bringing his own review application.
In her report, Public Protector Busisiwe Mkhwebane made a number of findings against both Gordhan and Pillay, including that an investigating unit of Sars established in 2007 — widely known as the “rogue unit” — was unlawfully formed and had conducted illegal intelligence gathering operations.
In her report, the police are directed to investigate “the criminal conduct of Messrs Gordhan, Pillay and officials involved in the SARS intelligence unit, for violation of section 209 of the Constitution and section 3 of the National Strategic Intelligence Act”.
Mkhwebane also instructs national director of public prosecutions (NDPP) Shamila Batohi to “note” that Mkhwebane is “aware” of the criminal proceedings against Pillay, adding that “effective steps should be taken to finalise the court process as the matter has been remanded several times already”.
Pillay said that Mkhwebane “ought full well to know that the Constitution enjoins the NPA to act without fear, favour or prejudice. Her demand on the National Director undermines the independence of the NPA”.
He said that Mkhwebane had made “extremely serious findings against me without any regard to the evidence, without revealing who her informants are and without affording me the benefit of a trial. Now she makes the outrageous demand that the [NDPP], who is currently engaged in the process of reviewing the decision taken to prosecute, should march to her drum”.
The direction to the police was also an intrusion on its terrain, he said, adding that the police had already investigated the formation of the unit and it had been concluded, he said.
Pillay said Mkhwebane had mostly ignored the evidence he had given her before she released her report. Pillay had submitted two affidavits and a number of documents to her. “It is plain that the Public Protector has failed to have regard to the most fundamental requirement of fairness by finding me to be a liar without giving any reason for making such a finding,” Pillay said.
Pillay said he stood by his submission that Mkhwebane was perpetuating the narrative of a rogue unit in Sars, which was untrue said Pillay. “I firmly believe that the manifest bias, capriciousness and irrationality of the Report bear out what I have stated.”
Read Pillay’s answering affidavit below.