Another blow for Mkhwebane as SCA dismisses appeal against Sars rogue unit report

Public Protector Busisiwe Mkhwebane has suffered another blow as the Supreme Court of Appeal (SCA) in Bloemfontein dismissed her application to appeal the Gauteng High Court ruling which set aside her report into the so-called Sars rogue unit.

The initial ruling had said that Mkhwebane’s claims were not supported by the established facts that were placed before her, and were “fundamentally wrong in law”.

Justice Maya in her ruling last week said that Mkhwebane’s application had: “no exceptional circumstances warranting reconsideration or variation of the decision”.

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“The application in terms of section 17(2)(f) of Act 10 of 2013 is dismissed with costs,” the judgement states.

The rogue unit narrative has been widely debunked with some media houses publicly apologising for articles previously written.

Mkhwebane released a report in 2019 looking into allegations against Public Enterprises Minister Pravin Gordhan and the South African Revenue Services (Sars) in relation to the so-called ‘rogue unit’.

She found that the establishment of the unit was unlawful and that Gordhan, who was Sars commissioner at the time, had violated the constitution.

She also found that the unit had conducted irregular and unlawful intelligence operations and that Sars failed to follow procurement rules when it bought spying equipment.

High Court findings

However, the court found that the Mkhwebane’s conclusion that the unit was established in violation of the National Strategic Intelligence (NSI) Act, because it was set up without the involvement of the National Intelligence Agency (NIA), was wrong in law.

“The NIA was not legally required to be involved in the establishment of the unit. The Public Protector’s conclusion in respect of the apparent lack of involvement of the NIA in the establishment of the unit are therefore wrong in law, irrational and unlawful,” the court said.

Mkhwebane’s fitness to hold office

Since then Gordhan accused Mkhwebane of waging a political campaign against opponents of state capture and claimed she was not fit to hold office.

The North Gauteng High Court, however, said that Gordhan had no evidence to prove his allegations against Mkhwebane.

It said that there was no evidence that she has ulterior motives and called his claims “suspicions and mere speculation” and said that was a debate for Parliament.

This has since resulted in the National Assembly voting in favour of establishing an ad hoc committee to investigate Mkhwebane’s fitness to hold office.

A report by an independent review panel, that had been set before that process, recommended a parliamentary inquiry into Mkhwebane’s fitness to hold office.

The panel was established by National Assembly speaker Thandi Modise after the Democratic Alliance (DA) tabled a motion for Mkhwebane’s removal from office.

The panel found substantial information that constitutes prima facie evidence of incompetence and misconduct against the public protector. It comprised retired Constitutional Court judge Bess Nkabinde, advocate Dumisa Ntsebeza and advocate Johan de Waal.

• Additional reporting by Thapelo Lekabe