Why Mkhwebane’s ‘rogue unit’ report is deeply flawed

Her strategy plays into the hands of those who believe that she has one mandate and one mandate only: get Gordhan by any means necessary.

Public Protector Busisiwe Mkhwebane and her deputy Kevin Malunga. Photo: Jonisayi Maromo / ANA.

“An almost-assassinated leader gets so much credibility, so he can stay in power and gets to stick around and enjoy it.”

That’s a quote from the 2005 movie The Interpreter. On Friday, Public Protector Busisiwe Mkhwebane released her report into the establishment of the so-called “rogue spy unit” at the SA Revenue Service (Sars).

She not only released a report but was at pains to point out the very difficult circumstances under which she had to work to get the report out.

Strangely, though, she harps back to a 2011 incident in which a public protector investigator died in a “mysterious” car accident to explain why her current atmosphere is threatening. She further refers to a possible poisoning incident where one of her staff was admitted to hospital. The police have cleared this case and no poisoning was found.

Mkhwebane has taken a leaf out of The Interpreter and used it to bolster her credibility. By using the “possible poisoning” story and mysterious 2011 car accident, she lays the ground to lend herself and her reports undue credibility.

Sadly for her, her reports will have to stand on their own when taken on review. Their legality will not be considered together with the manufactured fear factor that she so skilfully weaved into their release.

It might be that she has managed to create a perception that those implicated in the report are involved in cloak-and-dagger shenanigans of poisoning and killings, but only the contents of the reports get taken on judicial review.

Even just a cursory glance at some of her findings reveal a lack of legal depth. Her investigation into the establishment of the so-called rogue unit at Sars has two very obvious flaws that you don’t need a legal degree to understand.

The first is that the conclusion is reached about the existence of this unit based on the Sikhakhane report which has been discredited because auditing firm KPMG publicly retracted the report. The Sikhakhane inquiry report has been questioned on so many fronts and cannot be relied upon by the public protector to bolster her findings on the existence of a so-called rogue unit at Sars.

Mkhwebane’s second mistake in her report on the rogue unit is her conclusion that the unit must have purchased surveillance equipment to carry out its work. “It is extremely impossible that a unit carrying out investigations on behalf of Sars would not have procured equipment necessary for the fulfilment of its duties…”

Although she says evidence at her disposal indicates that equipment was procured (and probably unlawfully), she goes on to say those at Sars have refused to provide this evidence. Surely it can’t exist on the sole contention that it would have been impossible for the so-called rogue unit to perform its duties without it?

Mkhwebane has chosen to release her investigations into Pravin Gordhan at Sars in a piecemeal fashion. The strategy plays into the hands of those who believe that she has one mandate and one mandate only: get Gordhan by any means necessary.

The trouble is if she is releasing legally questionable reports on rehashed matters, they will backfire on her as badly as the reports that were found to be unconstitutional earlier on.