Another blow for Mkhwebane as court slams protector’s report on Sars ‘rogue unit’

PUBLIC Protector Busisiwe Mkhwebane has suffered yet another legal setback after her report into the existence of a “rogue unit” at the SA Revenue Service (Sars) was reviewed and set aside by the North Gauteng High Court.

Mkhwebane had in July last year released the report, which investigated the alleged violation of the Executive Ethics Code by Public Enterprises Minister Pravin Gordhan as well as allegations of maladministration at Sars under his tenure as commissioner at the tax collector.

Gordhan and former Sars deputy commissioner Ivan Pillay had sought to have the report reviewed, set aside and declared unlawful as he accused Mkhwebane of relying on discredited reports and failing to take into account “extensive evidence that was placed before her” during the course of her investigation.

The high court found Mkhwebane’s report and findings to be without foundation as they were based on “discredited reports and unsubstantiated facts”.

“The public protector’s bias against Mr Gordhan and Mr Pillay is manifest. Having regard to the manner in which the public protector simply dismissed out of hand and completely ignored and irrationally discarded hard facts and clear evidence, it is clear 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 found.

The court said the report had failed at every point and that it was “the product of a wholly irrational process, bereft of any sound legal or factual basis”.

“It cannot stand and must be set aside. Had the public protector undertaken a fair and credible investigation and considered the extensive body of evidence in an open-minded manner, the report may have been an opportunity to confirm the facts and the truth thereof.

"Instead, she allowed her important office to be used to try and resuscitate a long-dead fake news propaganda fiction,” the court said.