Busisiwe Mkhwebane wants SCA to have final say on Sars ’rogue unit’
Johannesburg - PUBLIC Protector Busisiwe Mkhwebane and the EFF want the Supreme Court of Appeal (SCA) to have the last word on her report into the so-called SA Revenue Service (Sars) rogue unit.
Mkhwebane and the country’s third-largest political party took their challenge to the North Gauteng High Court judgment that reviewed and set aside her July 2019 report.
In December last year, a full bench of the high court – Judges Selby Baqwa, Leonie Windell and Annali Basson – declared Mkhwebane’s report unlawful as well as her decision to entertain the complaints.
The Public Protector was ordered to personally pay 15% of the legal costs of Public Enterprises Minister Pravin Gordhan, former acting Sars commissioner Ivan Pillay and another ex-Sars boss Oupa Magashula.
Mkhwebane’s advocate, Dali Mpofu SC, on Friday said Gordhan’s legal representative Wim Trengove’s argument that no other court could come to a different conclusion does not get off the ground.
According to Mpofu, Mkhwebane can be accused of anything but she cannot be a prophet as she could not have known that late former Inspector-General of Intelligence Faith Radebe’s 2014 report would be set aside.
Tembeka Ngcukaitobi SC, for the EFF, said the SCA ought to look at whether the “rogue unit” did not deserve to have a legislative mandate and whether it was correct for the high court to set aside the public protector’s report on the basis of professional services firm KPMG’s report into the unit’s activities.
Trengove insisted that Mkhwebane’s findings were fatally flawed and there is no way another court can find differently from the high court.
In her application for leave to appeal, Mkhwebane told the court that Judges Baqwa, Windell and Basson made errors of law, fact and misdirections.
”The learned judges erred in finding that the public protector’s decision to conduct the investigation was unlawful because there were no special circumstances present,” Mkhwebane stated in her court papers.
Mkhwebane also apologised to North Gauteng High Court Judge Sulet Potterill for claiming that she deliberately omitted the words ‘inadvertently mislead from the actual Executive Ethics Code in her July 2019 judgment in favour of Gordhan.
Gordhan successfully interdicted and had the implementation of Mkhwebane’s remedial action suspended pending the finalisation of his review application.
Mkhwebane ordered President Cyril Ramaphosa to take disciplinary action against Gordhan for his role in the establishment of the Sars “rogue unit” within 30 days.
”… Insofar as the public protector’s remarks regarding Judge Potterill’s interpretation of the code are hereby withdrawn with the necessary unconditional public apology,” Mkhwebane said.
She added that the matter will be dealt with in further details if and when the Legal practice Council deems it fit to act after studying the judgment.
Mkhwebane is also demanding an apology from Gordhan for his strong, scandalous and vexatious attacks and gratuitous insults to her personally.
Judgment was reserved.