ANALYSIS: Gordhan girds for war as he links Mkhwebane and the EFF to capture

Public protector Busisiwe Mkhwebane during a media briefing regarding her finished investigations. Mkhwebane revealed that she had laid a complaint to the National Assembly speaker Thandi Modise perceived attacks on her by politicians. (Photo by Gallo Images/Sunday Times/Thapelo Morebudi)
Public protector Busisiwe Mkhwebane during a media briefing regarding her finished investigations. Mkhwebane revealed that she had laid a complaint to the National Assembly speaker Thandi Modise perceived attacks on her by politicians. (Photo by Gallo Images/Sunday Times/Thapelo Morebudi)

Pravin Gordhan's founding affidavit in his urgent application in the Gauteng High Court in Pretoria to interdict and set aside the findings and remedial action in Busisiwe Mkhwebane's report into the so-called SARS investigative unit has blown open the dirty political fight around reform and state capture.

The former minister of finance has taken the fight to the Public Protector and the EFF, his two main political opponents and his two main detractors. Not only does he accuse both of ulterior motives and political bias, he locates them at the centre of the state capture project – an accusation not unexpected of Julius Malema and the EFF, but one that represents a full-frontal attack on Mkhwebane.

It's a strong statement of intent by a minister considered to be central to President Cyril Ramaphosa's attempts to repair the state after a decade of capture under former president Jacob Zuma. And it positions Gordhan as the most visible opponent of the campaign to frustrate reforms.

"I reject this campaign and will continue to repeat the truth as many times as are necessary until it is clear what the facts are: there was no 'rogue unit' at SARS," Gordhan says in his court papers.

The Public Protector has been on the receiving end of two scathing and high-profile judgments by the High Court, one relating to ABSA and the SA Reserve Bank (where she overreached) and the other to the Guptas' Estina dairy project (where she failed to do a proper investigation). In both instances her competence, legal judgement and comprehension of her constitutional responsibilities were questioned. The Constitutional Court is also set to deliver judgment after an application was made by the SARB to declare that she abused her powers.

Her credibility is therefore very much in question, and Parliament's Portfolio Committee on Justice might soon have to consider launching an inquiry into her fitness for office after a request was made to the speaker by the DA.

It is against this backdrop that her dogged assault on Gordhan, while fastidiously ignoring everything coming out of the judicial inquiry into state capture, is being questioned. She has already made one adverse finding against him (saying he acted unlawfully in a pension matter a decade ago) and has now made a second damning finding against him. Gordhan has now taken both on review.

In his affidavit Gordhan argues that the SARS "rogue unit" narrative is plainly false and was concocted as part of a broad attack on South Africa's constitutional democracy. The "rogue unit" story is now being exploited politically and used by those "implicated in corruption, malfeasance and state capture," he says.

This assault came in the form of state capture, which led to the weakening and disembowelling of crucial state institutions, such as SARS, and the diverting of those institutions from their statutory responsibilities.

In his affidavit Gordhan goes for Mkhwebane's jugular, saying, "The primary focus of the Public Protector's investigation and the impugned report challenged in this review application appears to join this pattern" (paragraph 16).

In paragraph 46 he goes further, arguing that he is being targeted by the Public Protector in order to remove him from office and that if that should happen it would be to the benefit of the state capture project.

"It is even clearer when one considers the two reports together that the Public Protector is seeking to achieve my removal from office as a member of the executive to achieve political objectives. 

"That would only serve to facilitate the state capture project and activities.  It also would undermine the renewal of state institutions currently underway and will promote the interests of political proponents of state capture. 

"Finally, it would 'let off the hook' those responsible for corruption and the pocketing of public funds."

There is no coming back from these accusations. Gordhan believes – and he tells the court as much – that Mkhwebane is hell-bent on removing him from office and that the only beneficiaries of him stepping down from Cabinet will be those who are afraid of going to prison and those accused of grand corruption.

He argues that her incompetence and political bias cannot remain unchecked and that her actions are demeaning the authority of the Public Protector's office.

And the EFF? Gordhan says they aim to keep the "lie" of the "rogue unit" alive, that they jump to the defence of Mkhwebane when her competence is questioned (as two court judgments have done) and has turned into avid supporters of former SARS commissioner Tom Moyane, who was found by the Nugent commission of inquiry as having broken the institution.

It's patently clear that there is an enormous and sustained assault on Gordhan, and by extension, Ramaphosa. Mkhwebane – twice severely castigated by the High Court – have allies with questionable bona fides in Malema and the EFF. And she is yet to release her findings into Ramaphosa and Bosasa.

The fight is dirty and convoluted and won't be settled in the political arena. It seems lawfare will be the only way to settle it once and for all.

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