The escalating conflict between Public Enterprises Minister Pravin Gordhan and Public Protector Busisiwe Mkhwebane is headed for the North Gauteng High Court in Pretoria after Gordhan filed an urgent application asking the court to interdict Mkhwebane’s remedial action against him and to set aside her findings related to the so-called SARS “rogue unit”.
In a voluminous court filing consisting of a founding affidavit and supporting annexures of more than 1 100 pages the former minister of finance rejects Mkhwebane’s findings that the SARS investigative unit was illegal, that he was aware of illegal activities undertaken by the unit and that he lied about a meeting with a member of the Gupta family.
He also slams Mkhwebane and locates her firmly as part of the state capture project, accusing her of ulterior political motives and bias and placing her alongside Julius Malema’s EFF in driving a campaign that seeks to remove him from office.
If this campaign – where Mkhwebane has had her office “weaponised” – is successful it “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.”
Gordhan has been in the crosshairs of both Mkhwebane and the EFF recently, with Mkhwebane having already made an adverse finding against the minister and the EFF demanding that Ramaphosa act against him.
This conflict is perceived by many as a proxy war between the reformist grouping in the ANC and government and those resisting the curtailing of the state capture project.
The application follows last week’s release of Mkhwebane’s findings into her investigation into the SARS “rogue unit” in which she instructs President Cyril Ramaphosa to discipline Gordhan for his authorisation of the establishment of the unit while he was SARS commissioner.
She found the unit to have been illegal, engaged in illegal activities and that he lied about a meeting with a member of the Gupta family.
In his affidavit, Gordhan also seeks to convince the court that the SARS investigative unit was established legally and within the prescripts of the law.
He argues that Mkhwebane’s interpretation of the legality of the unit is unlawful, influenced by errors in law, stunted by a lack of proper investigation and the result of an ulterior motive.
The unit, Gordhan argues, was established in accordance with relevant statutes, including the SARS Act, the Constitution, the National Strategic Intelligence Act, and fell within the SARS mandate of cracking down on tax dodgers and the illicit economy.
He also argues that Mkhwebane’s logic is flawed because the unit was not established as an intelligence service dealing with matters of national security, but specifically to gather intelligence related to SARS’ mandate.
The law does provide for intelligence units if it is not engaged in matters of national security, and the SARS unit clearly was not, Gordhan contends.
“Its purpose was to fight tax evasion, illicit trade and organised crime with tax implications. It never had anything whatsoever to do with national security. It was never an ‘intelligence service’. The Public Protector’s assertion to the contrary is thus baseless and misdirected and reveals her biased approach to the investigation of the complaints and reliance on errors of law and fact to come to her findings in the report.”
He criticises Mkhwebane’s reliance on a number of discredited and disavowed inquiries and investigations into the issue, including the Sikhakane report, the Kroon panel and the KPMG report.
The Nugent inquiry into SARS found that Sikhakane was used by former commissioner Tom Moyane “to capture” and dismantle SARS, and Gordhan says this discredits the report.
Kroon and KPMG were also publicly rejected by its authors.
Despite the status of the investigations, the relevant laws and the findings of the Nugent commission Mkhwebane still made adverse findings about the unit, and Gordhan believes: “The inference is irresistible that she is willfully blinded by her determination to make an adverse finding regardless of verifiable facts and a clear legal position.”
He also rejects her finding that he lied about meeting a member of the Gupta family.
Gordhan asks the court to urgently interdict the remedial action demanded by Mkhwebane pending the review of the report.
If the court fails to grant the application he could suffer irreparable harm to his reputation and function as a minister because of the ramifications of any potential censure.
He also asks the court to award a personal and punitive cost order against Mkhwebane to deter her from using public funds in her “unlawful conduct”.
“Once again, she has demonstrated that she is unfit to hold the Office of Public Protector. She continues to ignore her constitutional mandate, act without regard to the provisions of the law and seemingly in service to some other motive or agenda. Her conduct is the latest example of her now lengthy history of acting incompetently, unlawfully, unconstitutionally, unfairly and unjustifiably,” Gordhan says.
Mkhwebane has until Monday to file opposing papers. Oupa Segalwe, her spokesperson, declined to comment.
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