Insiders told Independent Media that Gordhan was due to file his papers before the end of the week to interdict Ramaphosa, which would allow him enough time to file a separate application in the same court to review the findings Mkhwebane made public on Friday.
Mkhwebane made scathing findings, saying Gordhan was instrumental in the formation of an intelligence unit in the South African Revenue Service (Sars) while he was commissioner in 2007, to spy on certain high-profile individuals in the country.
In her report, Mkhwebane also said that members of the unit spied on the activities of the Directorate of Special Operations, then known as the Scorpions, and the National Prosecuting Authority.
Mkhwebane said: “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.”
In his reaction on Friday, Gordhan cried foul and accused Mkhwebane of bias, saying she was continuing to get “facts wrong, get the law wrong and is demonstrably biased”.
Gordhan’s spokesperson, Adrian Lackay, said Gordhan, like many others, had recorded his serious misgivings about Mkhwebane, her conduct and her partiality. “The Constitution, in section 181, envisages the office of the public protector to be independent, impartial, dignified and effective. To date, in this matter, it has failed in all four respects,” Lackay said.
Lackay said Gordhan had not yet decided on his course of action on the report, but sources say he has already taken a decision to take the matter on review.
Mkhwebane ordered Ramaphosa to take action against Gordhan within 30 days of her making the report public.
A source said: “This prompted Pravin (Gordhan) to approach the High Court on an urgent basis to interdict President Ramaphosa from implementing the public protector’s remedial action. It is up to the president to oppose the interdict application, which is unlikely at this stage.
“Indications are that Mkhwebane is likely also to release an adverse finding against the president, possibly on Friday this week. The president is also likely to take that report for review in the High Court.”
Mkhwebane’s spokesperson, Oupa Segalwe, could not confirm whether a report on Ramaphosa would be made public this week. Segalwe, however, said Mkhwebane had indicated she would release the report this month.
Sources indicated that Gordhan’s and Pillay’s imminent review application would ask the court to set aside Mkhwebane’s reliance on the Sikhakhane report, which appeared to have endorsed the existence of the rogue unit.
Gordhan and Pillay, according to sources, were expected to include in their application the testimony of retired Judge Frank Kroon, made under oath before the commission chaired by retired Judge Robert Nugent.
Judge Kroon, who chaired the Sars Advisory Board, admitted before the Nugent Commission that his board had issued a media statement saying the “rogue unit was unlawful”, but in evidence Judge Kroon told the Nugent Commission that decision was not reached independently by his board, but that it was adopted from the Sikhakhane panel.
Judge Kroon told the Nugent Commission that he had come to realise that their decision was wrong.