/ 7 December 2020

High court sets aside public protector report on Gordhan and Sars ‘rogue unit’

Pp Busisiwe Mkhwebane018 Easy Resize.com
Axed public protector Busisiwe Mkhwebane. File photo by Madelene Cronje

The high court has set aside public protector Busisiwe Mkhwebane’s findings on the so-called rogue unit, concluding that her report “is the product of a wholly irrational process, bereft of any sound legal or factual basis”.

In its blistering judgment, delivered on Monday morning in Pretoria, the court found that Mkwhebane “allowed her important office to be used to try and resuscitate a long-dead fake news propaganda fiction”.

In her report Mkhwebane accused now Pravin Gordhan of establishing an unlawful intelligence unit at the South African Revenue Service (Sars) in 2007, when he was the tax agency’s commissioner. She also found that Gordhan deliberately misled parliament by failing to disclose that a member of the Gupta family was present at a meeting he had with influential business Anil Ambani in 2010. 

In 2018, Mkhwebane received a complaint from Floyd Shivambu, the deputy president of the Economic Freedom Fighters, who claimed Gordhan “willingly established an intelligence unit against the intelligence laws of South Africa”. Shivambu based this claim on a 2014 investigative report compiled by a panel chaired by advocate Muzi Sikhakhane

But in 2018, retired judge Robert Nugent, who headed up the Sars commission of inquiry, could not find evidence of the unlawfulness of the unit. 

The high court found that Mkhwebane “inexplicably ignored” the Nugent report in reaching her conclusions. The court also found no factual or legal basis upon which it can be concluded that the establishment of the unit was unlawful.

It also found that Mkhwebane’s conclusion that Gordhan, who is now public enterprises minister, lied about the Ambani meeting “is not based on any rational assessment of the evidence presented”.

In a 2016 answer to a written parliamentary question about his contact with the Gupta family, Gordhan did not mention the Ambani meeting.  

In 2018 he told the Zondo commission of inquiry into state capture that he had no independent recollection of a Gupta family member being present at the meeting. But, he said, he had been reminded by his former chief of staff, Dondo Mogajane, about the meeting. Mkhwebane found this to be implausible.

In its judgment, the high court found that Mkhwebane failed to hold discussions with the parties implicated in the report before publishing it. This conduct “falls far short of the high standards demanded of her office”. The public protector released the report before making it available to Gordhan.

“Releasing the report which contained various adverse findings against Minister Gordhan and which had enormous personal and political impact, to the media before releasing it to the person [Minister Gordhan] affected by the report, is not in keeping with the high standards required by her office,” the court ruled.

The judgment also makes the serious finding that Mkhwebane displayed bias towards Gordhan. 

“We are alive to the fact that it would be wrong to assume that a fundamental breach of administrative justice necessarily indicates bias on the part of the administrator,” the judgment reads.

“However, we are also alive to the fact that the context in which a public official conducts themselves in a procedurally unfair manner may indicate bias on the part of that official.”

The court cites a number of reasons for making the bias finding, including Mkhwebane’s reliance on the “widely discredited” Sikhakhane report and her pandering to the rogue unit narrative.

“Having regard to the manner in which the public protector simply dismissed out of hand and completely ignored and irrationally discarded hard facts and clear evidence, it is clear that she approached her investigation with a preconceived notion, determined to make adverse findings against Minister Gordhan …  thereby promoting the false rogue unit narrative.”

The court ruled that Mkhwebane is personally liable for a portion of the legal costs.