South Africa

STATE OF CAPTURE

Appeal court dismisses bid to resuscitate Gordhan SARS report – Busisiwe Mkhwebane’s legal bills mount

Public Protector, Busisiwe Mkhwebane during her Roadshow in Thembisa. (Photos: Tebogo Letsie)

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.

Public protector’s legal bills mount with another ‘gross negligence’ finding against her

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.

It’s Judgment Day for the Public Protector

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.

State Capture redux: Luther Lebelo, the man trusted by Tom Moyane and Busisiwe Mkhwebane

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

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All Comments 18

  • Incomprehensibly incompetent. And not minding that the whole world see that. She really thinks she is right! Is’nt there a name for individuals who just don’t get it? Narcist or something?

  • Has she actually paid even one cent of all these ‘personal cost’ rulings against her? I would really like to see the receipt/s.

    • hopefully her pension is attached for the court ordered liabilities.

      if she has paid, SARS should have a look at the source of funds as these awards would NOT be a tax deductible expense in her hands or in the hands of whomever donated the money.

  • Shame on us for being so scathing about someone that is clearly so intellectually challenged. I would love to have a chat with the chair of the parliamentary committee that interviewed her and put her name forward as a suitable candidate. My guess is that her name ended up on the list as a joke and look at what we now have to put up with.

    • I beg forgiveness. You are right. Stupidity does not appoint itself. And since it was a committee who made the appointment it follows that it took several morons to appoint one moron.

      • The fact that it was a process which was conducted in public, and even on television – and a candidate like this gets the job! Not one voice in the country objected, to my knowledge, so would you agree that we have only ourselves to blame this time round?

        • If we follow the logic, yes, then we are all to blame. It says a lot about our collective intellect. I recall, however, that there were reservations expressed by a few. I can’t rcall the details. But it then follows that we have a collective hearing problem too as we did not listen to the few who expressed their concerns.

          • I believe the DA might have objected vehemently, because the was previously employed as a spy at the SSA?

  • So thick skinned she doesn’t even care if she’s thought a fool and perhaps doesn’t even realize she is one? Perhaps she gets encouraging calls from uBaba which give her the confidence to continue her struggle against the forces of reason and legality with a straight face…

  • My view of BM is that she has been bought and paid for by the RET faction, she is no idiot, you don’t become an advocate by being stupid. Whether it’s for money, power, both or something else she is doing what she is told to do no matter how idiotic and humiliated she looks. She won’t pay a cent of the cost orders just as Zuma doesn’t pay a cent to his lawyers from his own money it will be paid through 3rd parties.

  • Does this woman ever find time to do her job for which we taxpayers are funding at a cost of millions every year of her incumbency. Her days must be spent in preparation and consultation for the raft of litigation she has visited upon herself.

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