Gordhan is on Thursday expected to formally outline his plans on how he will respond to the subpoena served on him.
On April 23, Mkhwebane announced that she had given Gordhan an extension until Friday to submit his affidavit, but Gordhan is apparently unhappy with that deadline.
On Wednesday, Gordhan’s lawyer, Tebogo Malatji, did not want to comment on their next move but confirmed that Gordhan would issue a statement to the media today.
Those close to the case say that Gordhan wrote a letter to Mkhwebane and had formally requested a date after the national elections.
Independent Media has seen a letter dated April 16 to Mkhwebane after she served Gordhan with a subpoena to provide her office with an affidavit on allegations of his involvement in the establishment of the rogue unit while he was the SA Revenue Services commissioner in 2007.
In his letter, Gordhan requested an extension to respond to the subpoena within 20 business days as “from the date of receipt of your response to this letter”.
In the same letter, Malatji wrote: “The subpoena relates to matters which arose more than two years ago from the occurrence of the alleged incidents.
“As you are aware, in terms of section 6(9) of the Public Protector Act, 1994, you are required to have regard to special circumstances prior to conducting an investigation into an occurrence of this nature.”
Malatji said Mkhwebane’s subpoena had omitted to set out the “special circumstances”, as the alleged formation of the “rogue unit” took place in 2007 - 12-years later.
Those privy say Mkhwebane has not replied to the April 16 letter.
Mkhwebane, through her spokesperson, Oupa Segalwe, had earlier told Independent Media one of the special circumstances in the matter was the allegation that surveillance equipment was “still being used to this day to illegally tap people’s phones, install cameras in strategic places and that security companies in key government institutions are using such equipment”.
Segalwe said it was Mkhwebane’s view that she would only investigate the matter fully if she obtained evidence and records related to the unit’s alleged “incidents”.
But insiders say Gordhan is likely to defy Mkhwebane for her alleged failure to respond to his April 16 letter.