Question: Why did the Public Protector not provide Public Enterprises Minister Pravin Gordhan and former deputy SARS commissioner Ivan Pillay with copies of the draft report as is the usual practice?

Answer: It is incorrect to say that the Public Protector did not provide Minister Gordhan and Mr Pillay with copies of the draft report. They were served with notices in terms of section 7(9) of the Public Protector Act, essentially to be made aware of advocate Mkhwebane’s contemplated findings. This was for the purpose of soliciting their comments and/or representations pertaining to the potential findings. The minister has also argued that he was not favoured with a copy of the report prior to the Public Protector’s press conference. It is important to stress the point that the Public Protector’s findings are made public in terms of section 182(5) of the Constitution, read with Section 8(1) and (3) of the Public Protector Act 23. None of these provisions entitles anyone to receive reports before they are officially released publicly by the Public Protector.

Q: I have perused the documents that the Public Protector’s office relied upon to make her findings. They do not include the Nugent Commission of Inquiry into tax administration at SARS’ final report. Why was this not included as it does seem to be germane?

A: It is important to note that the Nugent Commission did not investigate the issues that formed part of the scope of the Public Protector’s investigation. Judge Nugent himself said his commission would not be drawn into the so-called “Rogue Unit” issues. Kindly refer to page 16 of his report, paragraphs 41, 42 and 43. Further, a simple reading of the Commission’s Terms of Reference will reveal that this matter was not part of the Commission’s scope of work. Therefore, commentary made in passing in relation to the so-called “Rogue Unit” by Judge Nugent does not amount to findings as there can’t be findings without an investigation. People deliberately quote the Commission’s report selectively. For instance, the judge opines on page 76 of his report that:

“That members of the unit might at times have acted unlawfully, that SARS employment policies might have been breached, that members might unlawfully have acquired and used equipment, all of which came later to be alleged, I see no reason why SARS was and is not entitled to establish and operate a unit to gather intelligence on the illicit trades, even covertly, within limits.”

Q: The Public Protector does not appear to have taken the following books into account (because they set out how intelligence gathering was used to break parts of the illicit economy using tax laws; they also set out how the investigating unit carried out its work and deal with how SARS came to stand in the way of political corruption): Rogue: The Inside Story of SARS’s Elite Crime-Busting Unit by Johann van Loggerenberg with Adrian Lackay; Death and Taxes: How SARS made hitmen, drug-dealers and tax dodgers pay their dues by Johann van Loggerenberg; The President’s Keepers by Jacques Pauw.

The reason I ask is that these are the “counter-factual” works (with regards to the report) which reveal that SARS investigative capacity was used to investigate the illicit economy and to show how these investigations substantially improved revenue collection.

A: Information contained in books does not amount to evidence that can be relied upon in a formal investigation. The Public Protector would require to get information directly from documents and sources/witnesses relied upon by the author, not secondary information from an author or their book. It is trite that journalists and authors are protective of their sources, understandably so. Further, content in a book is like a news story. It is not evidence in itself but allegations that would still need to be investigated. For instance, newspapers reported on the Nkandla upgrades. That in itself was not evidence. The Public Protector still needed to conduct an independent investigation, interacting directly with sources and documentary evidence in pursuit of the truth.

Q: The Public Protector’s report makes several references to “evidence at my disposal” and “information at my disposal” – what information and evidence is this?

A: This refers to, among other things, copies of official correspondence between the different players in the matter dating back to the time the “Rogue Unit” was established. Such correspondence includes documents like official memoranda. There are also witness accounts in interviews and affidavits (made under oath or affirmation), and previous findings of inquiries into the same matters. There are also sources of evidence that the Public Protector cannot reveal as that might have implications for national security, hence parts of the report are redacted.

Q: The Public Protector used the Sikhakhane Report into an alleged rogue unit at SARS. This report was never formally released into the public domain yet it appears to have been persuasive over her. May I inquire why? (The Sikhakhane report was commissioned by Pillay and expanded in scope by then SARS Commissioner Tom Moyane; it is regarded as a selective document.)

A: There are various other sources of information, not released publicly, which the Public Protector relied upon. But she also relied on evidence obtained independently.

Q: The Public Protector has made recommendations for action by the following:

The President of the RSA; Minister Pravin Gordhan; the National Director of Public Prosecutions; the Inspector-General of Intelligence; and the National Commissioner of Police. What are the Public Protector’s powers if these bodies do not accede to her instructions?

A: Firstly, they are not “recommendations” but binding remedial action which must be heeded unless set aside by a court and should review proceedings be instituted a court interdict must be obtained to stay implementation. To ignore the remedial action (even when review proceedings are pending without an interdict) is unlawful and an affront to the rule of law. That kind of conduct would take us to exactly where we were after the release of the Nkandla report, conduct which has been denounced by the Constitutional Court in the landmark judgment handed down on 31 March 2016 (the Nkandla judgment).

Q: Could you explain the following to me, please? (Quoting Public Protector Mkhwebane in the report): “The fact that there are no firm findings on the wrongdoing, this does not prohibit the Public Protector from taking remedial action. The Public Protector’s observations constitute prima facie findings that point to serious misconduct.”

A: These are excerpts from instructive court judgments on the extent of the Public Protector’s powers. Some people previously argued that the Public Protector cannot take appropriate remedial action if she had not made findings, but mere observations. This was in relation to the State of Capture Report. DM