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Gordhan, Mkhwebane to face off in ConCourt over 'rogue unit' report interdict

Nov 28 2019 07:00
Sibongile Khumalo

The Constitutional Court will hear two applications for direct leave to appeal on Thursday in the latest round of the so-called SARS "rogue unit" report case, which has pitted Public Protector Busisiwe Mkhwebane against Minister of Public Enterprises Pravin Gordhan.

Mkhwebane in July ordered that President Cyril Ramaphosa take remedial action against Gordhan based on the findings of her report into the establishment of the "rogue unit" at the SA Revenue Service in 2007. Gordhan was the SARS commissioner at the time.

In her report, Mkhwebane argued that the establishment of the unit - also known as the High Risk Investigations Unit - was illegal and that it conducted unlawful intelligence. 

Gordhan, in an affidavit filed before a lower court in July, denied there was anything illegal about the unit. He alleged the public protector has permitted her office to become "weaponised" in what he called a "political war against unity and renewal". 

"The investigating unit lawfully established by SARS investigated tax rogues. There is nothing rogue about its establishment," Gordhan said in a founding affidavit before the North Gauteng High Court .

Mkhwebane's report recommended that Ramaphosa discipline Gordhan, while also ordering that Speaker of the National Assembly Thandi Modise refer Gordhan to the Joint Committee on Ethics on Members Interests, and that he be investigated by the the minister of state security and the SARS Commissioner.

Gordhan challenged the report, with his legal team arguing that he would continue to "suffer baseless, but engineered, reputational damage" if the remedial action was not suspended, pending a full review of the report. 

In late July the High Court in Pretoria granted the minister's request for an interdict to suspend the remedial action. Part B of Gordhan's application, which has not yet been heard, seeks to have the entire report reviewed and set aside.

In her ruling, High Court Judge Sulet Potterill described the remedial orders as "vague, contradictory and/or nonsensical". 

The Economic Freedom Fighters, who had also joined the case, and Mkhwebane in August applied for leave to appeal the High Court ruling. But the following month, on September 3, the Public Protector attempted to withdraw her application for leave to appeal directly to the apex court, saying that she wished to lodge an appeal before the Supreme Court of Appeal. The EFF did not withdraw its application. 

Gordhan, meanwhile, stated that the application's prospect of success was weakened by Mkhwebane's attempted withdrawal, further arguing that it is "unclear on what basis the EFF can persist in its parasitic application."

He labelled the application as part the EFF "political campaign" against him.

However, in an usual turn of events, Ramaphosa, who is one of the respondents in the case, called on the court to hear the matter anyway despite Mkhwebane attempting to withdraw. The president said that he believed the issue at hand raised important Constitutional questions that were in the country's interest. 

Business Day first reported in late September that Mkhwebane's attempt to withdraw failed, and she is still listed as an applicant on the court's website.  

In a statement, the Constitutional Court said that both the EFF and the public protector would present their arguments for direct leave to appeal the High Court in Pretoria interdict on Thursday. 

- Additional reporting by Jan Cronje.

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