End of the road for Rogue Unit fake narrative 

Biased Public Protector’s conduct ‘reprehensible’, High Court finds, hands Gordhan comprehensive victory

By Marianne Thamm 7 December 2020
Caption
Public Protector Busisiwe Mkhwebane. (Photo: Gallo Images / City Press / Leon Sadiki) / Minister for public enterprises, Pravin Gordhan. (Photo: Waldo Swiegers/Bloomberg via Getty Images)

Mkhwebane’s conduct in the course of her investigation into Pravin Gordan and a so-called SARS “rogue unit” has been described by the Gauteng High Court as “without foundation, particularly as this conclusion is based on discredited reports and unsubstantiated facts”. She also must pay 15% of the court’s costs.

On Monday, 7 December 2020, Gauteng division Judges Selby Baqwa, Annali Basson and Leonie Windell directed that their findings be sent to the Legal Practice Council to consider Mkhwebane’s “shockingly inappropriate and unwarranted” attack on Pretoria High Court Judge Sulet Potterill in the PP’s attempt to contest Gordhan’s review of her report.

The judges, in a 111-page ruling, finally put to rest Mkhwebane’s conclusion in her report that Gordhan had established an illegal unit at SARS as being “without foundation, particularly as this conclusion is based on discredited reports and unsubstantiated facts.”

Her report, the court held, “fails at every point” and the judges were satisfied “that the Report is the product of a wholly irrational process, bereft of any sound legal or factual basis.”

Mkhwebane’s report could not stand “and must be set aside.”

The PP’s conclusion also that Gordhan had misled parliament was “simply wrong” and the argument that the Ethics Code could be violated even inadvertently was “based on an error of law.”

“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,” said the Judges.

Gordhan v PP – 7 December 2020 – Final 2020-12-07

There was no indication that Mkhwebane had attempted to investigate “the truth” of the assertions against former Deputy SARS commissioner Ivan Pillay and she had ignored the bulk of evidence provided to her.

In the court’s view, the Public Protector had not “undertaken, as is required by her office, a fair and credible investigation and an open-minded consideration of the extensive body of evidence that was placed before her in order to confirm the truth.”

With regard to Mkhwebane’s attack on Judge Sulet Potterill who granted  Gordhan’s  application to interdict her remedial action, the judges found that that the PP had been “contemptuous of the court and Judge Potterill personally”

“What makes this reprehensible conduct worse is that the remarks by Adv Mkhwebane were made under oath, when she ought to have known about the falsity thereof. 

“This clearly held the possibility of misleading this court. This is conduct unbecoming of an advocate and officer of this court.”

The court asked that the judgment be handed to the Legal Practice Council.

The court ordered the Public Protector and Mkhwebane to personally and severally pay costs. Mkwebane’s liability was limited to 15 percent.

“It is our view, this matter demonstrates that the Public Protector has failed to conduct her investigations in a manner befitting that office,” said the judges justifying the costs order.

“The Public Protector displayed dishonesty in respect of the OIGI report, on its own, deserving censure by this court in the form of a personal costs order against her.”

Costs on a punitive scale were warranted in the matter as the PP’s conduct “can only be described as egregious.” DM

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All Comments 11

  • a huge blow against anyone spreading false narratives in South Africa. Take note senior counsel to stop peddling the false narrative of the SAR rogue unit on behalf of dodgy clients. The court has pronounced on the truth and the rule of law and not the cab rank rule comes first.

  • If evidence of this PP’s fitness to hold ‘office’ was in doubt, this judgement should settle this matter ! Not that other previous judgements against her have not done so.

  • Great day for the truth! As I have mentioned before, the Public Menace that she is, is nothing but a Zuma and RET poodle designed to muddy the waters and protect/shield Zuma and his many thieves from their wicked activities and justice. Her findings and attacks are biased to the core and she conveniently omits the real criminals from any involvement, let alone accountability. Who can forget how she whitewashed the obnoxious Magashule and Zwane from the Estina grand theft!! Why only 15% costs – she should personally pay for the lot!

    • Consider this … Thuli found Zuma had to pay back some of the money not all of it. Far harder to attack than all of it. The public neglector will find it far harder to argue a smaller percentage that seems reasonable even generous. She also risks another court finding 15% to be too generous and make it say 30%. I can live with 15% (spending her 15% is easy).

  • Cue the first denial, appeal and accusation of a dark force at play.
    And then the inevitable delays to prevent her removal from office… about as likely to happen as Ace being told to step aside.

  • Hopefully this finding by the court – which is both clear as day and demonstrates her inability to do her job properly – will be exhibit #1 when she finally gets dragged before parliament to answer as to why she should be allowed to remain as PP….

  • Most concerning is that all these people in court battles, mostly paid for by the public purse, are still getting salaries to perform their task to help run the country. Who is doing their work while they engage in these courtoom ducks and dives?

  • Ironic that she should cite ( against the applicants) s195 of the Constitution which sets out the principles and values governing public administration. A classic case of projection.
    The courts should start to look at personal costs against senior council who continue to enable the Zuptas.

  • I wish I had been at liberty to point out my ex’s irrationality this number of times so bluntly and get away with it…

    More seriously, it doesn’t bode well for you where a) your argument for jurisdiction is based on a somewhat bizarre approach to the two-year period limitation, and b) your interpretation of the term ‘special circumstances’ is one that it is broad enough to include anything you are entitled to investigate in the first place.

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