Someone must be held accountable over Sars report, argues Mkhwebane

Advocate Thabani Masuku said that Public Protector Busisiwe Mkhwebane made very serious findings related to national security and intelligence.

Public Protector Busisiwe Mkhwebane at the Constitutional Court in Johannesburg on 22 July 2019. Picture: Sethembiso Zulu/EWN

PRETORIA – The Public Protector has argued that because of the serious nature of her findings in relation to a South African Revenue Service (Sars) investigative until the report is set aside, someone must be held to account.

This was among the submissions in the High Court in Pretoria on Tuesday where Public Enterprises Minister Pravin Gordhan applied to interdict the enforcement of the remedial action related to Advocate Busisiwe Mkhwebane’s report of the so-called rogue unit.

Mkhwebane instructed the president to initiate disciplinary hearings against the minister within 30 days of the report but Gordhan wants that order suspended until his judicial review is finalised.

Advocate Thabani Masuku said that Mkhwebane made very serious findings related to national security and intelligence.

“We get bogged down in trying to find something wrong with the Public Protector's findings that there was an intelligence unit inside Sars that performed illegal activities. That's a finding that stands until the review court speaks, that demands accountability for that kind of activity.”

Advocate Wim Trengove said that Gordhan would suffer irreparable harm, which he said was admitted by Mkhwebane herself.

“The strongest articulation of the irreparable harm from the mouth of the Public Protector herself who says if the president were to fire you based on my report today; a successful review may not get you back your job down the line. Well, that’s so.”

The parties agreed that no action would be taken in respect of the remedial action until the court delivered its judgment.

Mkhwebane told the High Court she would not have opposed Gordhan's interdict application if he did not insult her.

Masuku said Mkhwebane has been compelled to oppose Gordhan's application.

“She’s now been forced to oppose. Under normal circumstances, she would have said he has a right to review and if he wants an interdict, he can have it.”

Masuku said they take serious exception to the language used by Gordhan and the allegations made in his affidavit.

“So, we’re asking that they strikeout every allegation that has been relied on by the applicant as being scandalous and irrelevant to the adjudication of the legal questions that he appears to want to run.”

Meanwhile, the counsel for Gordhan told the High Court his client has absolute regard for the Office of the Public Protector but it was the incumbent, Mkhwebane, who had done harm to its standing and dignity.

Mkhwebane's counsel has argued that to interdict the implementation of remedial action against Gordhan would diminish the role the Public Protector played in holding the executive to account.

Masuku has told the High Court in Pretoria that the remedial action was intended to correct the wrongs identified by the Public Protector.

“When that is interdicted simply to protect the dignity of the person then, of course, we diminish those values of the constitutional democracy that we have.”

(Edited by Leeto M Khoza)