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.
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