The latest adverse court findings against public protector Busisiwe Mkhwebane are likely to give impetus to an inquiry to look into her fitness to hold office.
This is the view shared by civil society organisations reacting to a devastating Pretoria High Court judgment that labelled Mkhwebane’s report into the so-called Sars rogue unit a “product of a wholly irrational process, bereft of any sound legal or factual basis”.
In a scathing judgment, judges Selby Baqwa, Leonie Windell and Annali Basson, listed nine reasons why they came to their conclusion as they set aside Mkhwebane’s report from July last year in which she found that the formation of an investigation unit at Sars, while Pravin Gordhan was the revenue collection service’s commissioner, was unlawful.
The judges found that Mkhwebane had not undertaken “a fair and credible investigation and an open-minded consideration of the extensive body of evidence that was placed before her in order to confirm the truth”.
Executive secretary of the Council for the Advancement of the SA Constitution, Lawson Naidoo, said the judgment put into question Mkhwebane’s competence as well as her bona fides.
“The court questioned her honesty. The findings make it clear, if any further evidence is required, that she is patently unfit to hold such an important office. It is now up to parliament to complete the process for her removal so that the integrity of that office can be restored,” Naidoo said.
The judgment comes just weeks after National Assembly speaker Thandi Modise announced a three-member panel that will decide whether or not Mkhwebane has a case to answer before the legislature.
The panel has to evaluate the written evidence submitted with the complaint by the D A earlier this year together with any written submissions by Mkhwebane and make a recommendation for further investigation by a committee of parliament.
“If they do so, such a committee can have regard to this and other judgments against the PP delivered since the complaint was lodged,” Naidoo said.
Mkhwebane had found in her report on Sars that under Evan Pillay’s guidance and management, the revenue collector established the so-called rogue unit. She furthermore found that Pillay was involved in “irregular and unlawful intelligence operations”.
Baqwa, Windell and Basson said the investigation and report fell outside the jurisdiction of the public protector as it related to events dating back to 2009. The Public Protector Act requires her to investigate matters which occurred not more than two years ago.
The court also found that bias was also shown in the manner in which Mkhwebane interacted with Gordhan during the investigation and in releasing the report.
“Not only did the public protector elect not to engage with minister Gordhan’s attorneys on record, the section 7(9) notice was publicly posted on YouTube before giving any notice to him and his attorneys,” the court ruled.
“We are satisfied that the report is the product of a wholly irrational process bereft of any sound legal or factual basis. It cannot stand and must be set aside,” the judges said.
The court said Mkhwebane showed bias by her scurrilous allegations that Gordhan misled parliament and her relentless pandering of the untruths of Pillay’s qualification.
It said Mkhwebane’s bias against Gordhan and Pillay was clear as her dismissing out of hand and ignoring of hard facts showed 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 also ordered Mkhwebane to pay 15% of the costs of the case in her personal capacity
Wayne Duvenage, CEO of the Organisation Undoing Tax Abuse, said the court’s decision was yet another indication that Mkhwebane is not fit to hold her office.
“She has had several judgments against her…As far as we are concerned, parliament should remove her from the position,” Duvenage said.
Public protector keeps losing in courts
Public protector Busisiwe Mkhwebane has not had her way in most of the high profile reports which were challenged in the courts.
In February 2018, the High Court in Pretoria set aside Bankorp/CIEX report and awarded costs to Absa and the South African Reserve Bank (SARB).
It also ordered Mkhwebane to pay 15% of the costs of the South African Reserve Bank (SARB) in her personal capacity.
Mkhwebane report released in June 2017 ordered Absa to pay R1.1bn for an apartheid-era bailout provided to its predecessor Bankorp by the Reserve Bank.
Her findings were contested by the Reserve Bank and Absa, which applied to the court for the report to be set aside and to declare that Mkhwebane had abused her powers.
In March, the same court found that Mkhwebane failed to understand her jurisdiction and correctly apply the law when she did her investigations into President Cyril Ramaphosa’s campaign finances for the ANC’s 2017 national election.
Mkhwebane found in July 2019 that Ramaphosa had misled parliament about the R500,000 that was paid by Bosasa to his son Andile, which he later revealed that it was actually paid towards his CR17 campaign.
The court said there was “a complete lack of understanding on her part of the limits of her powers” and that she “displayed a clear failure to understand prosecutorial conduct”.
In October this year, the same court set aside and declared as constitutionally invalid Mkhwebane’s report which made findings of impropriety and maladministration against the Financial Sector Conduct Authority (FSCA).
FSCA, formerly known as the Financial Services Board (FSB), took Mkhwebane’s investigation on review. The investigation was initiated after the stripping of pension fund surpluses in a fraudulent scheme that led to the FSB being placed under curatorship.
Mkhwebane’s report, released in March 2019, contained findings of impropriety and maladministration against the FSB and its then executive officer, adv Dube Tshidi.
Above all, her arguments in court have often attracted a tongue lashing by the judges who dismiss her reports as legally inadequate.
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