Legal consultant Paul Ngobeni says Public Protector Busisiwe Mkhwebane has the right to lodge a Constitutional Court appeal after the High Court in Pretoria set aside her report on the so-called South African Revenue Service (SARS) rogue unit.
In its judgment on Monday, the court issued a punitive costs order against Mkhwebane.
This comes after she found that former SARS commissioner Pravin Gordhan, who is the current Public Enterprises Minister, had misled Parliament by failing to disclose that he held a meeting with members of the Gupta family.
Mkhwebane also found that Gordhan had violated intelligence laws by overseeing the establishment of the rogue unit.
The court said Mkhwebane relied on discredited information to compile her report and was biased against Gordhan and former SARS executive Ivan Pillay.
Ngobeni says Mkhwebane can appeal on the basis that an old code of ethics was used.
“In exonerating Gordhan about misrepresentation to Parliament, they are relying on the code of ethics from earlier years from 2000. The Constitutional Court itself in the Nkandla judgment relied on a 2007 code of ethics – that code is the one former Public Protector Thuli Madonsela used and that the current Public Protector Mkhwebane used. I think that is a clear case of an appeal. The Constitutional Court is going to have to deal with the question of if the 2000 code is the one that is still valid and applicable why did they in the Zuma case used the 2007 code. “
Meanwhile, Claude Leon Foundation Chair in Constitutional Governance at the University of Cape Town, Prof Pierre de Vos, says this is the most scathing judgment against the Public Protector:
SARS has welcomed the full bench judgment of the Gauteng Division of the High Court in the matter relating to the Public Protector’s Report on the so-called SARS Rogue Unit.
In a statement issued on Monday, SARS said: “Today’s judgment is a strong reminder to any incumbent, present or in the future, who occupies the important role as Commissioner of SARS as well as every SARS employee of their duty to be administratively fair, respect the institutional mandate, and always act in line with constitutional principles of rational decision making, unbiased conduct and hearing the other side.”
The statement adds: “SARS is engaged in restoring institutional integrity and rebuilding capability, and this is an opportunity to refocus on the important work of collecting tax and customs revenues, improve tax compliance and restoring public confidence.”