Mkhwebane allegedly filed incomplete record in Gordhan's SARS 'rogue unit' review - twice

Public Protector Busisiwe Mkhwebane. (Gallo Images, file)
Public Protector Busisiwe Mkhwebane. (Gallo Images, file)

Public Protector Busisiwe Mkhwebane has once again been accused of allegedly attempting to omit crucial information from records filed in court.

Having been censured by the Constitutional Court for filing incomplete records in the past, Mkhwebane has now been accused of failing to provide the court with a full record of her decision-making process in Public Enterprises Minister Pravin Gordhan's review application of her SARS "rogue unit" report - twice.

Gordhan's legal team filed notices in court twice, complaining that Mkhwebane had omitted essential documents related to her findings that there was a "rogue unit" at SARS, and that Gordhan was guilty of wrongdoing.

In response to questions from News24, she denied filing incomplete records, saying the full record had been filed. Gordhan's lawyers have received the third iteration of the record that she filed, have not raised any more objections, and said they were now moving ahead with their case.

Rule 53 of the Uniform Rules of Court requires the party whose action is under review to provide the court with a full and complete record of their decision making.

The Constitutional Court previously said the rule 53 record must include "every scrap of paper" which could directly or indirectly have led to the decision under review.

Mkhwebane, through her spokesperson, Oupa Segalwe, said it was Gordhan's lawyers who had delayed the process by asking, twice, for documents "they already had".

Segalwe said they had also confused the case in question with another of Mkhwebane's reports into Gordhan and the Ivan Pillay pension fund saga.

He added Mkhwebane had complied with all the timeframes and that the rule 53 record was complete.

'Rogue unit'

In July, Mkhwebane found that Gordhan had violated the Constitution because he was the SARS commissioner when an investigative unit called the "rogue unit" was formed. She also found that the establishment of this unit was illegal, although a number of investigations have found the opposite to be true.

Mkhwebane directed President Cyril Ramaphosa to take action against Gordhan and that there should be a criminal investigation into his and other senior members' conduct at SARS.

On July 29, Gordhan successfully interdicted the implementation of Mkhwebane's remedial action, pending the outcome of the review application.

Gordhan's attorney, Tebogo Malatji, told News24 that a date had not yet been set down for the hearing review application, saying the rule 53 record had been filed, but not before the legal team complained that crucial information was missing from the record, twice. 

Missing information

Documents filed in the High Court in Pretoria showed that Malatji & Co Attorneys had filed two notices setting out what was missing in Mkhwebane's records - on August 15 after she had filed the first iteration of the record, and again on September 16 after she had filed the second one.

The first time, the attorneys said, more than 30 pieces of documents were missing from the record. These included correspondence from the Public Protector to the inspector-general of intelligence, evidence related to the employment of former SARS employee Johan van Loggerenberg, a transcript of a meeting she had held with the minister of state security, and documents backing up vague references to "evidence" made by Mkhwebane in her report

Gordhan's lawyers also asked for "all documents upon which the Public Protector based her findings about the SARS investigative unit [the 'rogue unit']".

Mkhwebane filed another record, but Malatji & Co filed another notice in court complaining that it was still incomplete.

Among the outstanding records were the documents related to the SARS investigative unit findings.

Moving ahead

Malatji told News24 the team was moving ahead with the case.

"At this point, we are filing a supplementary affidavit [on behalf of Gordhan]," Malatji said, adding the team had what it needed from the record to move forward with the review application.

In the South African Reserve Bank/Absa case, Mkhwebane was scolded by the Constitutional Court for failing to file a complete rule 53 record. A majority of the court said this "stands in stark contrast to her heightened obligation as a public official to assist the reviewing court".

In that case, the majority upheld a personal costs order against her that was ordered by the High Court, which held that "her entire investigative model was flawed" and her conduct "falls short of the high standards required by her office". 

Commenting on Mkhwebane's failure, then, to provide the court with the complete rule 53 record, the majority of the bench said: "The Public Protector was, however, required to produce a full and complete record of the proceedings under review in terms of Rule 53 of the Uniform Rules of Court… An essential purpose of this obligation is to enable a court to perform its constitutionally entrenched review function.

"This gives effect to the rights of the parties under Section 34 of the Constitution to have justifiable disputes decided in fair public hearings with all the issues being ventilated."

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