- Busisiwe Mkhwebane says she is taking legal advice after the Supreme Court of Appeal dismissed her 166-page application for reconsideration of the dismissal of her “SARS Rogue Unit” appeal.
- SARS lawyer Bernard Hotz says Mkhwebane should take notes of what judges say about her future investigations.
- Judges had previously found that Mkhwebane’s “Rogue Unit” report “fails at every point” and was “the product of a wholly irrational process, bereft of any sound legal or factual basis”.
Supreme Court of Appeal (SCA) president Mandisa Maya has dismissed Public Protector Busisiwe Mkhwebane’s 166-page application for reconsideration of the dismissal of her “SARS Rogue Unit” appeal.
Maya found there were no exceptional circumstances justifying reconsideration.
Mkhwebane filed the failed application on 8 October to defend her “Rogue Unit” report, which was roundly lambasted by a full bench of the North Gauteng High Court in Pretoria in December 2020.
At the time, High Court judges Selby Baqwa, Annali Basson and Leonie Windell found Mkhwebane’s conclusion that former SARS commissioner Pravin Gordhan had established an illegal unit was “without foundation, particularly as this conclusion is based on discredited reports and unsubstantiated facts”.
The court also found the report “fails at every point” and was “the product of a wholly irrational process, bereft of any sound legal or factual basis”.
The full bench had ordered Mkhwebane to personally pay 15% of the costs of Gordhan’s legal challenge to that report, based on her “egregious” conduct during the case.
Mkhwebane had made it clear she did not accept that ruling, but both the high and appeal courts rejected her efforts to overturn it.
In September 2021, two SCA judges dismissed Mkhwebane’s efforts to appeal the invalidation of the report on the basis that it had “no reasonable prospect of success” and there was no other reason why it should be heard.
She then appealed directly to Maya, arguing that should her “Rogue Unit” appeal not be heard, “the Office of the Public Protector will suffer irreparable harm in that those who bear political power will always undermine the constitutional mandate of the office as well as the incumbent Public Protector”.
On Tuesday, SARS’ lawyer Bernard Hotz said the ruling meant justice had prevailed and the law had been applied correctly.
“The judgment, in at over 100 pages, found that the Public Protector had misapplied the law and she had not conducted investigations properly, she had not had regard to evidence that was available to her.”
Hotz added it would be high time that instead of simply wasting court time and resources by appealing orders, the Public Protector should take cognisance of what the judges had said so that in future, investigations could be conducted in accordance to the strict letter of the law.
Mkhwebane’s lawyers, however, argued although she might have made legal errors in her “Rogue Unit” report, “there are no valid grounds to make the findings of dishonesty, bias and or ulterior motives on the part of the Public Protector”.
The Public Protector had also found, as part of her report, that Gordhan had violated the Executive Ethics Code by deliberately misleading the National Assembly in 2016, when he failed to remember that a member of the Gupta family might have present at a 2010 meeting he held with “a certain Mr Ambani”.