Durban - Public Protector Busisiwe Mkhwebane has laid down the law to President Cyril Ramaphosa, instructing him to take action against embattled Public Enterprises Minister Pravin Gordhan for violating the Constitution and deliberately misleading Parliament about the SARS rogue unit and his meeting with a member of the Gupta family.In her report released on Friday, Mkhwebane found Gordhan guilty of improper conduct, abuse of power and maladministration for approving the establishment of an illegal spy unit during his tenure as Sars commissioner between 1998 and 2009.
Regarding whether Public Enterprises Minister Pravin Gordhan violated the Executive Ethics Code by deliberately misleading the National Assembly in failing to disclose that he had met with a member of the Gupta family since taking office.
Finding: According to Gordhan’s affidavit to the State Capture Commission of Inquiry (the Zondo Commission), he only remembered this meeting... after being reminded of it by former chief of staff Dondo Mogajane. I find this rather implausible when one considers the prominence of the subject of state capture in South Africa. I therefore find that his conduct in this regard is in violation of paragraph 2 of the Executive Ethics Code and accordingly amounts to conduct that is inconsistent with his office as a Cabinet member, as contemplated by section 96 of the Constitution.
2. Complaint number two
Regarding whether, during his tenure as Sars commissioner, Gordhan established an intelligence unit in violation of South African intelligence prescripts, and if so, whether such conduct constitutes maladministration.
Finding: Evidence indicates that even prior to Mr Gordhan’s memorandum to Mr Manuel, Sars had already begun operating a unit that gathered information covertly. However, as the accounting officer, Mr Gordhan should have been aware and, I believe, was aware that the unit had already started operating. Mr Pillay reported directly to Mr Gordhan as a commissioner of Sars.
The establishment of the unit with the approval of Mr Gordhan as the erstwhile accounting officer was in breach of section 209 of the Constitution, in terms of which only the president may establish such covert information-gathering unit. I further noted that Mr Magashula had misrepresented himself under oath by denying the existence of an intelligence unit. Even if the unit was never called the Rogue Unit at Sars, the operations and functions of the CBCU, a unit that existed, were similar.
The conduct of Mr Gordhan as referred to in the establishment of the intelligence unit at Sars, is improper and in violation of section 209 of the Constitution and therefore amounts to maladministration, as envisaged in section 182(1) of the Constitution and abuse of power, as envisaged in section 6(4)(ii) of the Public Protector Act.
3. Complaint number three
Regarding whether Sars failed to follow correct procurement processes in the procurement of intelligence equipment which the intelligence unit utilised for gathering intelligence, and if so, whether such conduct amounts to maladministration.
Finding: Sars failed to provide me with documents relating to the procurement of equipment for the CBCU, NRG, and subsequently the SPU. Evidence at my disposal confirms the existence of such equipment as well as the acquisition thereof.
4. Complaint number four
Regarding whether Sars failed to follow proper recruitment processes in appointing employees who worked for the intelligence unit, and if so, whether such conduct constitutes maladministration.
Finding: Although Sars failed to provide me with a policy regulating the transfer of staff within Sars branches, as well as policy which regulates headhunting for positions at Sars, evidence at my disposal points to some irregularity in the recruitment of personnel for the intelligence unit. The apparent denial of Gordhan of any involvement or participation in the recruitment process of one or more of the unit’s employees is improbable. The Sikhakhane Report confirms that Gordhan played a role in the recruitment of Van Loggerenberg.
I have further noted that, prior to Gordhan’s submission of a memorandum to the then minister of Finance, Trevor Manuel, Pillay had already begun recruiting members to partake in operations of surveillance.
The conduct of Gordhan in approving the memorandum for the establishment and invariably recruitment of staff for the intelligence unit in the manner described is improper, and thus amounted to improper conduct, as envisaged in section 182 (1) of the Constitution and maladministration, as envisaged in section 6(4)(i) of the Public Protector Act.
5. Complaint number five
Regarding whether the intelligence unit carried out irregular and unlawful intelligence operations, and if so, whether such conduct constitutes maladministration.
Finding: Despite denials by Sars, I have evidence before me which indicates that during June 2007 until November 2007, Pillay and Janse van Rensburg irregularly procured Helgard Lombard and De Waal and/or authorised Lombard and De Waal to intercept communication within the offices of the DSO and those of the NPA without an interception direction issued by a designated judge in terms of the Regulation of Interception of Communication and Provision of Communication. There is further evidence at my disposal of the unauthorised interception of private communications of prominent members of society, as well as surveillance by the intelligence unit of Sars for unknown reasons and/or purposes.
The conduct of Sars officials in such unauthorised interception and surveillance is in violation of the Regulation of Interception of Communication and Provision of Communication and amounts to an abuse of power, as envisaged in section 6(4)(ii) of the Public Protector Act.
6. Complaint number six
Regarding whether Mr Pillay was appointed to the position of deputy Sars commissioner and subsequently as Sars commissioner whilst he did not possess the necessary qualifications for the positions, and if so, whether such conduct amounts to maladministration.
Finding: The position of deputy Sars commissioner was a new title and/or position in Sars, formulated through a new business model. The new business model identified persons holding executive position through skills and expertise, aligned values and principles, as well as behavioural competencies. The sole use of the new business model as a blanket benchmark for the appointment of Pillay, specifically, to the position of deputy Sars commissioner, was irregular and in violation of section 195 of the Constitution.