Johannesburg - Public Protector Busisiwe Mkhwebane has suffered yet another legal setback after her report into the existence of a “rogue unit” at the SA Revenue Service (Sars) was reviewed and set aside by the North Gauteng High Court.
The court found her to have been dishonest and biased, and the investigation had fallen outside her jurisdiction.
In July last year, Mkhwebane released her report, the result of investigations into alleged violation of the Executive Ethics Code by Public Enterprises Minister Pravin Gordhan and allegations of maladministration at the Sars during his tenure as commissioner.
Her report found Gordhan to have presided over the establishment of an intelligence unit in violation of the SA intelligence prescripts, which illegally spied on people.
Gordhan and former Sars deputy commissioner Ivan Pillay had sought to have the report reviewed, set aside and declared unlawful as they accused Mkhwebane of relying on discredited reports and failing to take into account “extensive evidence that was placed before her”.
On Monday, the court found her “rogue unit” report had “failed at every point” and it was “the product of a wholly irrational process, bereft of any sound legal or factual basis”.
“It cannot stand and must be set aside. Had the Public Protector undertaken a fair and credible investigation and considered the extensive body of evidence in an open-minded manner, the report may have been an opportunity to confirm the facts and the truth thereof. Instead, she allowed her important office to be used to try and resuscitate a long-dead fake news propaganda fiction,” the court said.
Mkhwebane had recommended President Cyril Ramaphosa take disciplinary action against Gordhan.
The high court found her report and findings to be without foundation as they were based on “discredited reports and unsubstantiated facts”.
“The Public Protector’s bias against Mr Gordhan and Mr Pillay is manifest. Having regard to the manner in which the Public Protector simply dismissed out of hand and completely ignored and irrationally discarded hard facts and clear evidence, it is clear that she approached her investigation with a preconceived notion, determined to make adverse findings against Minister Gordhan and Mr Pillay, thereby promoting the false rogue unit narrative,” the court found.
The court found Mkhwebane to have failed to conduct her investigations in a manner that was befitting of her office.
“In so doing the Public Protector acted in total disregard of the values enshrined in Sections 181(1)(a) and 182 of the Constitution which call upon the Public Protector to be impartial and exercise her powers and perform her functions without fear, favour or prejudice,” the ruling said.
The EFF supported her by defending the report.
This was her fourth high profile report to be reviewed and set aside by the courts.
Mkhwebane was also slapped with the cost order, 15% of which she must pay from her own pocket.
Her spokesperson, Oupa Segalwe, said she would “study the grounds upon which the court set aside her evidence-based findings and the related appropriate remedial action, with a view to exploring the options available to her".
"Until she has thoroughly studied the judgment, advocate Mkhwebane will not make further comments on the matter," Segalwe said.
Political Bureau