Public Protector Advocate Busisiwe Mkhwebane has found that current Public Enterprises Minister, Pravin Gordhan, violated the Constitution when he approved the establishment of the so-called rogue unit at South African Revenue Service (SARS) during his tenure as Commissioner.

Mkhwebane was releasing investigation reports in Pretoria on Friday.

She says the intelligence unit was established without the involvement of the State Security Agency.

Mkhwebane has also found that former SARS Commissioner Oupa Magashula lied under oath when he denied the existence of the intelligence unit.

“The establishment of the unit with the approval of Gordhan as the accounting officer was in breach of section 209 of the constitution in terms of which only the president may establish such a covert information gathering unit . I further note that Magashula has misrepresented himself under oath by denying the intelligence of the existence of the unit even if the unit was never called the rogue unit at SARS. The conduct of Gordhan as referred to is in violation of section 209 of the constitution.”

The Public Protector says she has evidence in her possession that confirms the existence of intelligence equipment that was procured for use by the so called “rogue unit” that she has ruled was in violation of the constitution.

She has told journalists in Pretoria that Gordhan, should have established the unit with the involvement of the State Security Agency. Mkhwebane says the procurement process was flawed.

“It is extremely impossible that the unit carrying such outside investigation on behalf of SARS would not procure this equipment, the only contention by SARS being that it was not conducting illegal operations. However if its operations were lawful, it is unclear why SARS and its former employees would keep procurement of equipment such a secret. I can only come to the conclusion that proper procurement processes were not adhered to.”

Violation of Executive Members’ Ethics Code

Mkhwebane also added that Gordhan violated the Executive Members’ Ethics Code by misleading the National Assembly when he failed to disclose that he met with a member of the Gupta family and associates.

She says Gordhan also misled the State Capture Commission when he told Deputy Chief Justice Raymond Zondo that he did not recall having a meeting with the controversial Gupta family.