Public Enterprises Minister Pravin Gordhan has filed court papers in an urgent bid to interdict remedial actions in a report released by Public Protector Busisiwe Mkhwebane on Friday.
The papers were filed in the North Gauteng High Court in Pretoria on Wednesday and are in response to Mkhwebane’s report on SARS and conduct by Gordhan, particularly surrounding the so-called “rogue unit”.
Gordhan wants the court to interdict Mkhwebane and the Office of the Public Protector from taking any action to enforce the remedial action.
She recommended action be taken by President Cyril Ramaphosa, Speaker of the National Assembly Thandi Modise, state security minister Ayanda Dlodlo, national director of public prosecutions Shamila Batohi and police commissioner Kehla Sithole.
While the urgent application merely seeks an interdict against the remedial actions, the main application filed by Gordhan asks that the entire report be declared unlawful and be set aside.
The urgent application may be heard on 23 July, according to papers seen by News24.
He has also asked the court to interdict Mkhwebane and the Office of the Public Protector from taking any action to enforce the remedial action.
In the court papers Gordhan slams Mkhwebane.
He asked the court to declare that “the Public Protector and Advocate Mkhwebane personally acted in breach of their constitutional duties to be independent and to exercise their powers and perform their functions without fear, favour or prejudice”.
Further that: “It is declared that the Public Protector and Advocate Mkhwebane personally, dishonestly or alternatively recklessly made her findings in the report against the applicant [Gordhan] in that they knew the findings were false or were reckless as to their truth”.
Mkhwebane found in her report that Gordhan was guilty of maladministration and violating the prescripts of the National Strategic Intelligence Act, as well as the Consitution, for the establishment of an intelligence unit at the South African Revenue Service in 2007.
Gordhan was SARS Commissioner between 2001 and 2009.
This unit garnered intense scrutiny over more than a decade. In 2014, the unit was labelled as the ‘rogue unit’ by the Sunday Times newspaper, which later retracted the articles.
- The unit was unlawfully established in 2007.
- It conducted illegal covert intelligence gathering as part of its investigations.
- Procured spying equipment; and
- recruited officials for the unit – officially known as the High Risk Investigations Unit – outside of SARS policies.
Several findings were also made against former deputy commissioner Ivan Pillay. Pillay has denied the allegations and vowed to also take Mkhwebane’s report on review.
Gordhan cited Pillay as a respondent in his papers, together with former SARS Commissioner Oupa Magashule.
Mkhwebane’s remedial action included that Ramaphosa take disciplinary action against Gordhan within 30 days, that the State Security Agency implement recommendations in a classified 2014 Inspector General of Intelligence report and that the SSA seize alleged spying equipment from SARS.
Mkhwebane also asked the NPA and the SAPS to investigate possible criminal charges against Gordhan and Pillay.
The SAPS elite crime busting unit, the Hawks, have already investigated Gordhan and in 2017, former NDPP Shaun Abrahams dropped charges against Gordhan.
Pillay, together with former SARS enforcement executives Johann van Loggerenberg and Andries Janse van Rensburg, were charged in 2018 in connection with the alleged bugging of the NPA and former Scorpions offices in Pretoria in 2007.
The bugs were installed by SARS employee Helgard Lombard.
* More to follow