Mkhwebane finds Gordhan violated executive ethics code, SARS 'rogue unit' was unlawful

2019-07-05 14:44
Minister Pravin Gordhan. (Jaco Marais, Netwerk24)

Minister Pravin Gordhan. (Jaco Marais, Netwerk24)

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Public Protector Busisiwe Mkhwebane has made another adverse finding against Public Enterprises Minister Pravin Gordhan, this time in relation to the establishment of the so-called "rogue unit" at the South African Revenue Service (SARS) in 2007.

At the time, Gordhan was the commissioner of SARS. He was appointed as minister of finance in 2009.

Mkhwebane released her report on the "rogue unit" on Friday during a press briefing at her offices in Pretoria.

She told journalists she had divided her Gordhan probe into parts to deal with the various allegations:

  • That Gordhan lied to Parliament by not disclosing his meeting with a member of the Gupta family;
  • That SARS established an unlawful intelligence unit (the so-called "rogue unit");
  • That this unit allegedly obtained illegal equipment to conduct intelligence operations


On the first count, Mkhwebane said Gordhan had failed to remember anything that happened during the supposed meeting, and she thought this was implausible.

On the SARS rogue unit issue, she found that former SARS commissioner Oupa Magashula had lied under oath during his interview with her by saying no such intelligence unit existed. The unit was established without involving the State Security Agency (SSA).

Under former finance minister Trevor Manuel, SARS had already begun operating the unit and Gordhan should have been aware of this, she said. The commissioner of SARS is the accounting officer and was therefore accountable.

On the alleged possession of intelligence equipment, evidence in her possession confirmed its existence.

"If SARS' operations were lawful, it is unclear why SARS kept this a secret," she said. Mkhwebane said she could only conclude that this was because they did not follow proper procurement procedures.

As part of her remedial actions, President Cyril Ramaphosa has 30 days to take appropriate disciplinary action against Gordhan for "violation of the Constitution and the Executive Ethics Code".

And within 60 days, Mkhwebane said there must be a criminal investigation into 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, including Magashula lying under oath. 

Her report must also be referred to Parliament's Joint Committee on Ethics and Members' Interest within 14 working days.

Previous finding on Ivan Pillay matter

Previously, Mkhwebane found Gordhan had violated the Constitution when he approved the early retirement of former SARS deputy commissioner Ivan Pillay in 2010.

Pillay was paid out his full pension benefits, and rehired by SARS on a contract basis a day after his retirement was to take effect.

Mkhwebane found this was irregular and stated in her report there was never any intention for Pillay to resign. SARS had to pay R1.1m to the Government Employees Pension Fund to cover shortfalls, which Mkhwebane recommended the current SARS commissioner recover from Pillay and Gordhan.

Gordhan has taken the report on review. A date is yet to be scheduled for the matter to be heard in the North Gauteng High Court in Pretoria.

The so-called rogue unit or Special Projects Unit, as it was named in 2007, was established at SARS with the intention that its members would be seconded to the National Intelligence Agency.

The motivation for the unit was to give SARS intelligence capabilities to meet its mandate in its battle against the illicit economy.

Then finance minister Trevor Manuel approved the unit, together with Gordhan.

The unit, which underwent several changes in structure and leadership, would later become known as the High Risk Investigations Unit (HRIU).

It burst into prominence when the Sunday Times newspaper published a series of articles between 2014 and 2015, alleging the unit had bugged former president Jacob Zuma’s home in Forest Town, had planted bugs in the National Prosecuting Authority’s offices in 2007, had millions in a slush funds, and had conducted covert spying operations on politicians.

The allegations were later disproved, and the newspaper was forced to retract the stories and apologise. But the damage had been done, and under former SARS commissioner Tom Moyane, the enforcement capability of SARS declined drastically, as revealed in the Nugent Commission of Inquiry.

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Read more on:    public protector  |  anc  |  sars  |  busisiwe mkhwebane  |  pravin gordhan

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