Court reserves judgement in Mkhwebane, Gordhan review application

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Judgement has been reserved in Public Enterprises minister Pravin Gordhan’s court application to review and set aside Public Protector Busisiwe Mkhwebane’s findings against him.

Lawyers for Gordhan, former SARS deputy commissioner Ivan Pillay, the Public Protector and EFF have concluded their arguments on Tuesday.

Minister Pravin Gordhan brought an urgent application to the High Court in Pretoria to have Mkhwebane’s findings against him suspended until the judicial review has been completed.

The Public Protector found that Gordhan’s establishment of a so-called ‘Rogue Unit’ in South African Revenue Service (Sars) while he was still Commissioner of the Revenue Service was a violation of the Constitution.

President Cyril Ramaphosa supports Gordhan in his application. The EFF supports the Public Protector and is opposing Gordhan’s application.

Judgement will be delivered at a date that parties will agree on, but before 4 August, because that is when 30 days deadline, set by Public Protector expires.


Constitutional powers

During proceedings, Advocate Thabani Masuku, representing Mkwebane, argued against the language used by  Gordhan to have her report against him suspended until the judicial review has been completed.

Masuku said that the Public Protector acted within her constitutional powers to investigate complaints.

“What is she supposed to do? Can she walk confidently in the streets of South Africa without being called an enabler of State Capture? Why will anyone bring the complaint to the Public Protector so that the Public Protector can act in accordance with constitutional powers to investigate the complaints and to report on and to faction remedial actions? Can she do that with confidence and the independence and the dignity that the constitution says she must have? She cannot,” Masuku told the court.

Earlier Advocate Wim Trengove said that the SARS did not gather intelligence during the tenure of Gordhan when he was the Commissioner.

Trengove, who is representing Gordhan, has argued that the law permits institutions to gather information as long as it does not threaten national security or the stability of the country.

Trengove said Gordhan did not break any law.  “It defines the departmental intelligence as intelligence about any threat or potential threat to the national security and the stability of the Republic. So what the provisions means is that if you are the department required by law to perform functions in relation to national security then you may not gather departmental intelligence that is the intelligence about the security of the Republic in a covert manner. Well SARS never gathered the departmental intelligence.”

Lawyer Tembeka Ngcukaitobi, who represented the Economic Freedom Fighters (EFF), says there is no basis for the minister’s claims that there was no rogue unit at South African Revenue Service (SARS).

“So with respect, there can be no basis for the allegations that there in fact was no evidence of the rogue unit. The evidence was overwhelming on the basis of what is in the Public Protector’s report and there can be no basis of the allegation. Oh well, if it existed Mr Gordhan didn’t know about it because the Public Protector has dealt with that allegation. She found that from the probabilities he must have known because he was involved in the initial conversations about locating the unit within NIA (National Intelligence Agency).”