The Public Protector has agreed to put her remedial action against Public Enterprises Minister Pravin Gordhan on hold until the Gauteng High Court (Pretoria) rules on the Minister’s bid to interdict the remedial action outlined in her report into the SARS so-called ‘rogue unit’ pending a judicial review, notes Legalbrief.

The court reserved judgment yesterday in the urgent application brought by Gordhan, with Judge Sulet Potterill saying she needed a few days to formulate her ruling. A Business Day report notes this was the first application to be heard by the court in the legal battle between Gordhan and Busisiwe Mkhwebane.

The Minister is also taking her report on the early pension payout of former SARS Commissioner Ivan Pillay on judicial review. Gordhan’s application was supported by President Cyril Ramaphosa, Pillay and another former SARS commissioner, Oupa Magashule. The two commissioners were also mentioned in Mkhwebane’s report. The Public Protector and the EFF opposed the application.

A two-part application was brought by Gordhan after Mkhwebane found he had violated the Constitution when he established an intelligence unit at SARS.

She also found that he had deliberately misled Parliament about meeting the controversial Gupta family. Mkhwebane directed Ramaphosa to take appropriate disciplinary action against Gordhan within 30 days and directed National Assembly Speaker Thandi Modise to refer the Minister’s violations to the Joint Committee on Ethics and Members’ Interests for consideration.

She also directed that the SA Police Service Commissioner investigate, within 60 days, the conduct of Gordhan, Pillay and other officials involved in the SARS unit, for violating the Constitution and the National Strategic Intelligence Act, and told NPA head Shamila Batohi to finalise the court case against former SARS officials.

Full Business Day report

Advocate Wim Trengove, for Gordhan, argued that Mkhwebane overstepped her legal jurisdiction in pursuit of the ‘rogue unit’ case, as the Public Protector Act stipulates that the office may investigate matter within two years of occurrence, unless there are compelling special circumstances.

According to a Fin24 report, he said Mkhwebane failed to identify any special circumstances after she was asked to do so by the Gordhan's legal representatives. ‘No one has done more harm to the office than the incumbent. She has done more harm to the office than anybody else,’ said Trengove.

A second Fin24 report notes he stated that Mkhwebane’s findings relied on an earlier report by Advocate Muzi Sikhakhane, which has been rejected. Sikhakhane’s conclusion was ‘obviously wrong’, he argued, adding that it had been repudiated by the Nugent Commission as well as Judge Frank Kroon, who chaired the SARS Advisory board.

Trengove further argued that it would be unlawful for Ramaphosa to discipline Gordhan without affording him a hearing. He said that SARS was within its legal framework when it established the unit tasked with probing illicit economy activity which impacts revenue collection. It was established as part of government’s commitment to fighting organised crime, he told the court.

‘There is no basis, in fact or in law, for the Public Protector’s findings to the contrary,’ said Trengove.

Mkhwebane had said that the unit was in breach of section 209 of the Constitution. Trengrove submitted that this was a distortion of the law, and that Gordhan’s application for the review of the report was on the basis that it was ‘biased’ and had ‘ulterior motives’.

He also argued that the remedial orders had been used to ‘cast aspersions’ on Gordhan’s character, ‘malign his reputation, and adversely affect his standing as Minister of Public Enterprises’.

First Fin24 report

Second Fin24 report