STATE OF CAPTURE
Appeal court dismisses bid to resuscitate Gordhan SARS report – Busisiwe Mkhwebane’s legal bills mount
On 19 January 2022, the Supreme Court of Appeal finally banged the last nail in the coffin of the ‘Rogue Unit’ report, dismissing Mkhwebane’s ‘application for reconsideration of her petition for leave to appeal’.
In October 2021, Public Protector Busisiwe Mkhwebane directly approached Supreme Court of Appeal (SCA) Judge President Mandisa Maya to hear an appeal of a 2020 Pretoria High Court ruling that her SA Revenue Service SARS Report was an unsubstantiated fiction.
Undaunted by a scathing December 2020 high court ruling by judges Selby Baqwa, Annali Basson and Leonie Windell, and despite hefty personal cost orders, the Public Protector pushed on.
The judges described Mkhwebane’s work and findings on Gordan’s alleged early payout of a pension for former deputy SARS commissioner Ivan Pillay, as without foundation, based on “discredited reports and unsubstantiated facts” and “the product of a wholly irrational process, bereft of any sound legal or factual basis”.
In December 2020, the high court also ordered that Mkhwebane personally pay 15 % of the legal costs of current Minister of Public Enterprises Pravin Gordhan’s legal challenge of her “report”, adding to her not insubstantial and growing pile of personal cost orders and other punitive awards.
In August 2019 Judge Ronel Tolmay ruled in the Pretoria High Court that Mkhwebane should pay 7.5% of the legal costs of each of the two applicants in the “Estina dairy case”. This was after a report produced by her office was ruled unconstitutional and invalid.
The report was a “whitewash”, the court found in that instance.
In July that same year, the Constitutional Court ordered Mkhwebane to pay 15% of the litigation costs associated with the “Reserve Bank” matter in which she sought to alter the constitutional mandate of the South African Reserve Bank.
The Public Protector was found to have discussed the vulnerability of the Reserve Bank with the State Security Agency (SSA), a fact she had failed to disclose. She also failed to highlight her meetings with former president and accused No 1, Jacob Zuma, in her 2017 report.
On 19 January 2022, the SCA finally banged the last nail in the coffin of the “Pravin Gordhan” report, dismissing Mkhwebane’s “application for reconsideration of her petition for leave to appeal” which, in Stalingrad Strategy-speak means “defend the realm to the last cent and legal humiliation”.
The SCA noted that the appeal had already been dismissed with costs “for the reason that exceptional circumstances warranting reconsideration or variation of the decision refusing the application for leave to appeal have not been established”.
As we speak, Mkwehbane is still in the hot seat as South Africa’s Public Protector.
This week we learnt that Luther Lebelo, a man who aided Tom Moyane’s capture of SARS, has been employed by the Office of the Public Protector as a director of communications and chief of staff. Good salary too.
Lebelo, a vociferous and ruthless defender of Moyane, named in Part 1 of the report into State Capture, was suspended from SARS in 2019. That SARS opted not to proceed with further action against Lebelo and other officials has enabled them to re-enter the deployment circle of death and rebirth.
In fact, at the departure of Lebelo and disgraced former IT head, Mmamathe Makhekhe-Mokhuane, SARS “wished them well in their future endeavours”.
The PP will remain put until someone moves first in the impeachment process which has been dragged into 2022.
In Daily Maverick in November 2021, colleague Marianne Merten wrote that, “Until the legal wrangling is resolved over the National Assembly rule to remove from office the bosses of the constitutional institution supporting democracy, the parliamentary Section 194 impeachment inquiry against Public Protector Busisiwe Mkhwebane remains suspended.”
This was after the Western Cape High Court dismissed her challenge to the validity of the impeachment rules.
In that instance and in an unprecedented move, a full Bench led by Judge Elizabeth Baartman “rewrote parliamentary rules”, prompting Mkhwebane to challenge the validity of this action, the job of Parliament.
In the legal wrangling between the Public Protector and Parliament, the Western Cape High Court judgment provided a window of opportunity for Mkhwebane to yet again call for an end to the Section 194 inquiry into her fitness for office on grounds of incompetence and misconduct.
It would be safe to predict, judging from the modus operandi of the PP in past defeats and humiliations, that she will continue to inhabit a parallel universe that intersects with real life and the battle for the soul of South Africa. DM