Public Protector Busisiwe Mkhwebane’s SA Revenue Service “rogue unit” report against Public Enterprises Minister Pravin Gordhan could be weakened if State Security Minister Ayanda Dlodlo manages to swing the odds in his favour.
Dlodlo’s interlocutory application before the North Gauteng High Court, in which she wants the report of the inspector-general of intelligence removed from the court record because it contains sensitive information, could boost Gordhan’s bid to clear his name of the damning findings of illegal intelligence gathering.
But Mkhwebane is set to oppose the application on the grounds that the document forms a “central” part of the case against Gordhan, who has denied the existence of the so-called rogue unit.
Mkhwebane’s acting spokesperson, Oupa Segalwe, said: “The Public Protector is not interested in the sensitive details contained in the report. As far as the Public Protector is concerned, that information can be redacted, and the report made available to the court in a redacted format.”
Mkhwebane is also concerned that the judge she has accused of bias and judicial misconduct, Sulet Potterill, may be scheduled to hear Dlodlo’s application and “does not believe that she will be impartial when hearing the matter”.
Last month Mkhwebane wrote a scathing affidavit to Chief Justice Mogoeng Mogoeng and the Judicial Services Commission (JSC), saying that Potterill, in granting Gordhan an interdict against the report on the rogue unit report in July, used “harsh language” that was “disparaging, derogatory, and was actuated by personal spite”.
On Friday President Cyril Ramaphosa also upped the stakes in his face-off with Mkhwebane in a separate probe over a R500 000 donation to his ANC campaign from controversial firm Bosasa.
He is challenging her to declare how she got hold of the leaked emails in the court record showing that his explanation that he was kept in the dark around the finances of his ANC presidential campaign in 2017 may not be true.
But Segalwe declined to comment, saying that Mkhwebane “does not want to litigate through the press”.
“She has even written to the president for a meeting about this media-created perception that they are fighting. No response has been received yet.”
Dlodlo’s predecessor, Dipuo Letsatsi-Duba, previously opened a police case against Mkhwebane, charging her with theft of information and the violation of South Africa’s security laws after she allegedly laid her hands on the classified state document.
Mkhwebane opened a countercharge with the police against Letsatsi-Duba over her alleged interference with the functioning of the office of the Public Protector, in that Letsatsi-Duba had failed to make available a declassified copy that Mkhwebane required in connection with an investigation into the alleged violation of the executive members’ ethics code by Gordhan.
In July the National Prosecuting Authority (NPA) declined to prosecute either case, “based on the evidence and the nature of the contraventions of the two statutes under consideration”, according to Hawks spokesperson Brigadier Hangwani Mulaudzi.
State security spokesperson Mava Scott said Dlodlo had applied to court to have the classified report of the inspector-general of intelligence “removed from the court papers of the EFF” – which was party to Gordhan’s interdict application.
“The report contains secret information exposing the identities of members and former intelligence members, and sources and methods of the agency, which is protected from publication by law”.
The “unauthorised publication of such information is therefore unlawful”, he said.
Mkhwebane hits back at ‘rogue unit’ judge
Contained in an affidavit made under oath on August 23 2019, Mkhwebane charged that Potterill was biased when she remarked during her ruling that some of the Public Protector’s remedial action was “nonsensical”. Mkhwebane added that such language amounted to a gross violation of the judicial code of conduct and had the potential to erode confidence in the independence of the judiciary.
Potterill’s high court ruling in July prevented Mkhwebane from enforcing the remedial actions contained in her report on the SA Revenue Service’s rogue unit, which implicated Gordhan and called for Ramaphosa to take disciplinary action against the minister.
Mkhwebane’s gripe – and she would settle for a formal apology and a retraction if the JSC permitted – was that Potterill went further to describe some of the remedial action as “vague, contradictory and/or nonsensical”.
“There is no doubt that the use of the word ‘nonsensical’ by a judicial officer against a head of a chapter 9 institution, or anybody for that matter, is a breach of the Code of Judicial Conduct,” said Mkhwebane, who last week had made a public remark that it was curious that despite the complaint, she may have to sit before the same judge for another upcoming hearing.
She said in the affidavit that her complaint warranted an investigation because Potterill violated a provision in terms of the code of conduct stating that in order to ensure a fair trial, “a judge must remain manifestly impartial, act in accordance with commonly accepted decorum; and remain patient and courteous to legal practitioners, parties and the public, and requires them to act likewise”.
Furthermore, she said, the code stated that “harsh language should be avoided if possible and a judge may not, under the guise of performing judicial functions, make defamatory or derogatory statements actuated by personal spite, ill will, or improper, unlawful or ulterior motive”.
Moreover, she said, the code should be read in conjunction with the norms and standards for the performance of judicial functions, particularly one of the core values placing emphasis on “the independence of the judiciary and the concomitant imperatives of integrity and impartiality of all judicial officers”.
The norms required that judicial officers at all times act in accordance with the core values stated in the norms and standards, said Mkhwebane. “It is my humble submission that the language used by the judge is not in accordance of the commonly accepted decorum; it’s harsh language that is disparaging, derogatory, and was actuated by personal spite.”
She said she was “deeply saddened” by the manner in which the judge handled herself when dealing with the matter, and “the disparaging remarks have certainly violated my dignity, both as the incumbent and as a legal practitioner”.
Furthermore, she said: “I have no doubt that the remarks have severely dented the image, dignity and effectiveness of my office.”
The matter between Mkhwebane and Gordhan was heard on an urgent basis on July 23, during which Gordhan sought an order for the stay of implementation of the remedial action pending the determination of the review application.
In the judgment handed down six days later, Potterill commented that much of Mkhwebane’s remedial orders were “vague, contradictory and/or nonsensical”.
Mkhwebane said in her affidavit that without imposing and prescribing the desired outcome and with due respect to the independent powers and functions of the JSC, it was her “considered view that the judge should be ordered to retract and render a formal apology to the Public Protector”.
The JSC’s secretary, Sello Chiloane, said on Friday that the Judicial Conduct Committee, established to deal with complaints lodged against judges, had received a complaint lodged by Mkhwebane against Potterill. The committee would deal with it “in due course”, he said.
On Friday in Parliament the subcommittee on the review of the National Assembly rules met to consider proposed rules concerning the removal from office of the Public Protector, the Auditor-General or a member of a commission established by chapter 9 of the Constitution.
The proposal to review the rules was prompted by a request for Parliament to investigate Mkhwebane’s fitness to hold office, coming on the back of a series of damning court judgments against her.