UPDATE | Office of Public Protector won't oppose challenges to latest SARS report – including Gordhan's

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Busisiwe Mkwhebane during her impeachment hearing on Friday morning.
Busisiwe Mkwhebane during her impeachment hearing on Friday morning.
Jan Gerber
  • In April, Busisiwe Mkhwebane found that SARS commissioners were involved in "improper conduct and maladministration" around an IT contract.
  • Following Mkhwebane's suspension, the Public Protector's Office chose not to oppose a legal challenge to that report.
  • As a result, the report's findings and recommendations against Ivan Pillay were overturned by the Gauteng High Court in Pretoria on Monday.

The Office of the Public Protector says it will not oppose any of the court challenges launched against advocate Busisiwe Mkhwebane's latest report on the SA Revenue Service (SARS), including those launched by Public Enterprises Minister Pravin Gordhan and the tax service.

As a result, Mkhwebane's final report on SARS is certain to be invalidated in its entirety.

The Office of the Public Protector's spokesperson, Oupa Segalwe, told News24 it made this decision because previous rulings had made it clear that the prospects of winning the challenges were very slim.

"The decision was based on prospects of the PPSA successfully defending the review application. In the main, the PPSA considered the fact that the grounds for review were procedural aspects of investigation and the publication of the report, which were the subject of unfavourable judgments against the institution in other matters," he said.

"Financial implications were the other reason, given the involvement of multiple parties in the litigation."

In response to questions from News24, Mkhwebane said she was "not aware" that her office had opted not to oppose the various challenges to her last SARS report and would not comment further.

News24 earlier reported that Mkhwebane's latest report on former SARS official Ivan Pillay – who last week lambasted her investigations into SARS – has been invalidated "by agreement" with her office.

The Gauteng High Court in Pretoria on Monday ordered that the report, which centred on an 18-year-old IT contract, "is reviewed, declared unlawful and set aside" in each instance where it related to Pillay.

More damagingly for Mkhwebane, whose impeachment inquiry continues on Wednesday, the high court also found that the beleaguered Public Protector acted "in breach" of Pillay's constitutional rights by failing to provide him with:

  • "any notice whatsoever of the investigation;

  • "any of the rights to which he is entitled to in terms of section 7(9) of the Public Protector Act, 23 of 1994; and
  • "any right to be heard on the remedial action that the first respondent contemplated granting against him."

Given that Mkhwebane has routinely been lambasted by the courts for failing to afford the subjects of her most barbed investigations – including President Cyril Ramaphosa and Public Enterprises Minister Pravin Gordhan - these same rights, the high court's ruling is very likely to be part of the arsenal of evidence that she needs to address when she testifies at her impeachment inquiry.

In her now partially invalidated report on the SARS' IT contract, Mkhwebane recommended that the Hawks consider investigating alleged criminal conduct by current and former SARS bosses, including Edward Kieswetter and Gordhan.

She released that report on SARS' 2006 contract with software firm Budge, Barone & Dominick (BBD) less than three hours after the State Capture Inquiry found in its latest report that Gordhan was instrumental in resisting the Guptas' takeover of Treasury.

The complaint of "maladministration, improper conduct and procurement irregularities" which prompted the probe, had been launched by former government spokesperson, and current Jacob Zuma Foundation frontman, Mzwanele Manyi, in 2016.

ALSO READ | Mkhwebane impeachment: Witness told off during inquiry

While SARS had used a specific Treasury regulation, which provides for deviation from normal procurement processes without the need to put it out to tender, Mkhwebane said she "could not find compelling reasons for them to do so".

The Public Protector Act also says that the Public Protector should not consider any complaint unless its reported within two years of the incident, barring special circumstances. Mkhwebane, in this case, said she was deviating from the two-year rule because of "special circumstances".

Pillay's lawyers released a statement, in which they noted that Mkhwebane's latest SARS report was the third in which she made adverse findings against Pillay.

Both of the other two Public Protector reports that made findings against Pillay – including the so-called SARS "Rogue Unit" report and the report on his early retirement – have been overturned by the courts.

"Testifying as a witness on Friday, in the proceedings of the Section 194 Parliamentary inquiry into the fitness of advocate Busisiwe Mkhwebane to hold office, Mr. Pillay highlighted a litany of similar abuses of power in these investigations conducted by the Public Protector against him," his lawyers said.

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