Picture: Siphephile Sibanyoni/ African News Agency (ANA)

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.

She also found Gordhan guilty of breaching the executive code of ethics by deliberately misleading Parliament when he failed to disclose that he had met Ajay Gupta during his term in office. Gordhan has been critical of the Gupta family in recent years, labelling those who met them as enablers of state capture.

In her report, Mkhwebane said the establishment of the spy unit “with the approval of Mr Gordhan” as SARS commissioner breached section 209 of the Constitution in terms of which “only the President may establish such covert information gathering 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,” said Mkhwebane.

“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 began recruiting members to partake in operations of surveillance.”

She ordered Ramaphosa “to take note of the findings in the report insofar as they related to the erstwhile Minister of Finance Mr Gordhan, and to take appropriate disciplinary action against him within 30 days of issuing of this report”.

This comes more than a month after Ramaphosa ignored Mkhwebane’s remedial action against Gordhan in the matter about his irregular approval of former Sars deputy commissioner Ivan Pillay’s early pension.

Mkhwebane further ordered State Security Minister Ayanda Dlodlo, Police Commissioner General Khehla Sitole, National Assembly Speaker Thandi Modise and National Director of Public Prosecutions Shamila Batohi to implement their share of remedial steps against Gordhan. However, none of them was willing to comment on the report when contacted yesterday.

Ramaphosa spokesperson, Khusela Diko, said the president has not yet received it. “We are therefore not in a position to comment on the matter until he has had an opportunity to apply his mind to it,” she said.

Modise said: “I don’t have such a report on my desk and therefore I can’t comment. If she sent it then she sent it somewhere else, but I don’t have it.”

Sitole’s spokesperson, Brigadier Vishnu Naidoo, declined to comment on the matter and referred Sunday Independent to Hawks spokesperson Brigadier Hangwani Mulaudzi who said they would await an instruction from Sitole on the way forward.

However, that instruction might result in the opening of old wounds. A source within the elite crime fighting unit said criminal investigations would resuscitate former Hawks boss Berning Ntlemeza’s probe. He sent Gordhan 27 questions in 2016 related to the establishment of the rogue unit.

“The initial investigation was shelved after it was concluded. It now means it will have to be reopened,” said the source.

Batohi’s spokesperson, Bulelwa Makeke, said “we will go through the report and see how it affects the NPA and take it from there.’’

The rogue unit was established in February 2007 by Pillay who was at the time Sars risk and enforcement executive.

However, it was run by various managers who included at times Andries Janse van Rensburg, as well as Johann van Loggerenberg.

The spy unit was officially set up to penetrate organised crime syndicates engaged in the smuggling of cigarettes, drugs and rhino horns.

However, it wreaked havoc in the run up to the ANC Polokwane conference when it placed prominent politicians under illegal surveillance, intercepted their calls and emails, and even bugged 12 offices of the National Prosecuting Authority (NPA) used by senior officials including then NDPP head Vusi Pikoli.

It used specialised equipment such as CCTV cameras, binoculars, needle pins and portal radios procured at a cost of R546 million, according to its own records and affidavits by former members such as Helgard Lombard.

Politicians targeted included former president Jacob Zuma, Tokyo Sexwale and then ANC Youth League leaders Fikile Mbalula and Julius Malema.

Mkhwebane’s report said: “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.”

Both Gordhan and Pillay have questioned Mkhwebane’s report, decried her failure to inform them about plans to release the findings and threatened an urgent review application.

“It is apparent that the public protector continues to get the facts wrong, get the law wrong and is demonstrably biased. 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,” Gordhan said.

Pillay, through his lawyers Werkmans Attorneys, denied any wrong-doing.

EFF deputy president Floyd Shivambu, one of the complainants in the Gordhan matter, said his party would ensure all remedial actions are implemented, “especially for the SAPS to take action”.

Timeline of the SARS rogue unit report

1998

Pravin Gordhan is appointed Sars commissioner.

1999

Gorhan recruits Ivan Pillay as Sars risk and enforcement executive.

2006

Pillay and Sars chief officer for strategy Pete Richer conceptualise the spy unit.

Former Finance Minister Trevor Manuel approves it on condition it is placed under NIA, but Sars later decides to operate it underground.

February 2007

Pillay illegally establishes Sars rogue unit and recruits Andries Janse van Rensberg as a founding manager.

July 2007

Rogue unit illegally bugs 12 NPA offices used by senior officials, including then-NDPP boss Vusi Pikoli and Gerrie Nel ahead of the ANC’s Polokwane conference.

It intercepts calls, emails and places prominent politicians under surveillance, including Jacob Zuma, Julius Malema, Fikile Mbalula, Tokyo Sexwale and Paul Mashatile.

Unit intercepts a meeting between Zuma and former Sars executive Leonard Radebe at the Beverly Hills Hotel in Durban.

February 2008

The unit outlines “rules” in a memo to members including “unit is not known” and “cost centre is not known”.

March 2008

Sars pays Janse van Rensberg R3 million to buy his silence after he threatened to go public about the spy unit.

March 2019

Pillay, Janse van Rensberg and Johann van Loggerenberg are charged with corruption and the contravention of the RICA Act over the rogue unit.

November 2018

EFF Deputy President Floyd Shivambu lodges a complaint with the Public Protector.

June 6, 2019

Public Protector Busisiwe Mkhwebane releases her Sars rogue unit report.

Sunday Independent