Public Protector: Gordhan violated South African intelligence prescripts and the Constitution on ‘rouge unit’

Public Protector Busisiwe Mkhwebane. Picture: Leon Sadiki/City Press
Public Protector Busisiwe Mkhwebane. Picture: Leon Sadiki/City Press

Public Protector Busisiwe Mkhwebane has made another finding against the Public Enterprises Minister Pravin Gordhan. Mkhwebane has ruled that the SA Revenue Services (Sars) “rogue” intelligence unit established by Gordhan was in violation of South African intelligence prescripts.

Gordhan was the Sars commissioner in 2007 before he was appointed minister of finance in 2009.

During a press briefing on Friday at her offices in Pretoria, Mkhwebane said that Sars had failed to follow proper procurement processes when obtaining illegal equipment to conduct intelligence operations.

The Public Protector said the “blatant refusal” of Sars and its former employees to provide records of the procurement to confirm the purchasing of the said equipment and its whereabouts was “suspicious and unwarranted”.

She also said Gordhan had lied about his meeting with the Gupta family.

“Gordhan lied to Parliament of his failure to disclose his meeting with one of the Gupta family members.”

She also found that Sars had failed to follow proper recruitment processes in appointing employees who worked in the intelligence unit.

“Although Sars failed to provide me with policy regulating, the transfer of staff within the Sars branches as well as the policy which regulates headhunting for positions at Sars, evidence at my disposal point to some irregularity in the recruitment of personnel for the intelligence unit,” she said.

She highlighted the revenue services’ failure to advertise positions externally and Gordhan’s denial of his participation in the recruitment process.

Mkhwebane found that Gordhan’s approval of former general manager, Ivan Pillay’s early retirement was in violation of the Constitution.

She said there were never any intention for Pillay to retire because he was rehired by Sars on a contract, just a day after his retirement. At least R1.1 million was required to cover the shortfall after Pillay was paid out his full pension benefits.

Mkhwebane found Gordhan guilty of improper conduct for his approval of Pillay’s early retirement and pension payout in May.

Gordhan has asked for a review of the findings and a date is yet to be set for the matter to be heard in the Pretoria High Court.

Remedial action

Meanwhile, President Cyril Ramaphosa has been given 30 days to take disciplinary action against Gordhan for his violation of the Constitution and executive ethics code.

The minister of state security must ensure, also within 30 days, “that all intelligence equipment utilised by the Sars intelligence unit is returned, audited and placed into the custodian of the State Security Agency”.

The SA Police Service commissioner must investigate Gordhan for lying under oath and for the violation of Section 209 of the Constitution.

National Assembly speaker Thandi Modise, has also been given 14 days to refer Gordhan’s case to the joint committee on ethics and members’ interest.

On Friday, Gordhan’s office said his legal team had not received a formal notice or report from the Public Protector about her latest finding.

“Minister Gordhan has instructed his legal representative to consider the Public Protector’s report upon its receipt and to prepare an urgent review,” his lawyers Werksman Attorneys said.

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July 2020

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