Before discussing key aspects of the judgment delivered by a full Bench of the Gauteng High Court against the Public Protector, Busisiwe Mkhwebane, three initial observations are appropriate.
First, along with a slew of other judgments that have condemned the competence and conduct of the incumbent of the Office of the Public Protector, this judgment again raises the question of how, in a country with notorious levels of public corruption, Advocate Mkhwebane can continue in such a key office that is dedicated to dealing with public maladministration?
Second, this judgment, as if further evidence was needed, confirms the fundamental legal inaccuracy of what has become known as the Sikhakhane Report into the “rogue unit”, as well as the damage that this report inflicted on a number of ex-SARS officials and Public Enterprises Minister Pravin Gordhan.
Third, the judgment runs to 115 pages and that, in turn, raises the question as to the compilation of judgments that are accessible and easily read, both by the affected parties and the broader community.
This litigation began when the EFF lodged a complaint with the Public Protector that, inter alia, Gordhan “willingly established an intelligence unit against the Intelligence Laws of South Africa”. The EFF relied on a SARS investigation report compiled by the Sikhakhane panel.
The Sikhakhane panel was an external panel appointed in September 2014 by Ivan Pillay to conduct an investigation into allegations of impropriety against Johann van Loggerenberg. The Public Protector initiated an investigation and then issued a report on 5 July 2019, titled “On an Investigation into Allegations of Violation of the Executive Ethics Code by Mr Pravin Gordhan, MP as well as allegations of Maladministration, Corruption and Improper Conduct by the South African Revenue Service”. Apart from the adverse findings made against Gordhan, the report also implicates Pillay and Oupa Magashula, both former employees at SARS, in serious misconduct, maladministration and criminality.
It was this report that prompted the affected parties to launch a review application to declare the issue of the report unlawful and have it set aside. The first ground of review was that the Public Protector did not have jurisdiction to investigate and issue the report. This argument was based on section 6(9) of the Public Protector Act, which provides:
“Except where the Public Protector in special circumstances, within his or her discretion, so permits, a complaint or matter referred to the Public Protector shall not be entertained unless it is reported to the Public Protector, within two years from the occurrence of the incident or matter concerned.”
The court found that the Public Protector could show no special circumstances, save, as the court in another context found to be clear animus against Gordhan, to justify her entertaining the complaint. On its own, the finding of lack of jurisdiction was sufficient to uphold the review application.
Significantly, however, the court went much further and devoted the majority of the judgment to the balance of the review grounds raised. The first of these additional issues concerned the finding that Gordhan had breached the Executive Ethics Code, which reads:
“Members of the Executive may not wilfully mislead the legislature to which they are accountable.”
The background to this issue was the following: The Public Protector found that Gordhan had violated the ethics code by deliberately misleading the National Assembly in 2016 by not being able to remember a 2010 meeting with a certain Mr Ambani at which a member of the Gupta family was said to have been present. This incident occurred in response to a written question where Gordhan described his contacts with the Gupta family. He responded as follows:
“I have not attended any meeting with the Gupta family or anyone else at their Saxonwold estate. I have encountered one or more members of his family at public events on a few occasions, eg, a cricket match. I have met one of the Gupta brothers at Mahlamba Ndlopfu around 2009/2010, during which a brief discussion on small business finance took place.”
Gordhan thereafter testified before the Zondo commission in 2018. He stated that he attended a meeting in June 2010 with Mr Ambani of the Reliance Group. He testified that he had been advised by his former chief of staff, Dondo Mogajane, in preparation for the Zondo commission, that a member of the Gupta family had been present at the Ambani meeting. He stated that he had no independent recollection regarding the presence of a member of the Gupta family at the meeting, but there might have been one, and he had accordingly decided of his own accord to make a full disclosure after being reminded by Mogajane of the meeting held during June 2010.
Unsurprisingly, in the absence of any evidence to gainsay Gordhan’s version, the court found that there was no basis to hold that he had willfully misled Parliament. But the judgment had only started in its condemnation of the Public Protector. Judge Sulet Potterill, in an earlier part of this litigation, had emphasised the importance of the “wilful” requirement. In ignoring this finding to arrive at her adverse finding against Gordhan, the Public Protector suggested that the judge had deliberately misread the ethics code. The court had the following to say:
To claim that Potterill J “deliberately omitted the words ‘inadvertently mislead’” from the actual Code, is simply astonishing. Besides being a Public Protector, Adv Mkhwebane as an officer of this court owes it a duty to treat the Court with the necessary decorum. She not only committed an error of law regarding the Code but was also 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 Public Protector then dealt with what has become known as the rogue unit at SARS. She found that Gordhan, during his tenure as the commissioner of SARS, established an “intelligence unit” in violation of the South African Intelligence prescripts and, secondly, that the establishment of the unit was “improper and in violation of section 209 of the Constitution and therefore amounted to maladministration as envisaged in section 182(1) of the Constitution”.
This finding required a careful evaluation of the Sikhakhane Report. After referring to the Nugent Report, the retraction by Judge Frank Kroon, who had mistakenly relied on this report, applicable case law and the relevant legislation, the court found that:
… in addition to the fact that the Sikhakhane Report has been widely discredited, we can likewise find no factual or legal basis upon which it can be concluded that the establishment of the unit was unlawful. In as far as the Public Protector has placed any reliance on a contravention of section 3(1) of the National Strategic Intelligence Act in arriving at a finding that the unit was unlawfully established, her conclusions are clearly wrong in law and therefore irrational and unlawful.
The following passage from the judgment adds to this searing criticism:
The Public Protector’s stubborn reliance on an erroneous interpretation of section 3(1) of the NSI Act is not explained in the Report. She also does not engage with any of the legal arguments that are contrary to those expressed in the complaints and her own. At the very least, it was expected that the Public Protector would critically engage with views contrary to hers instead of simply repeating the conclusions reached in the Sikhakhane Report in respect of the lawfulness of the unit.
There is much more in this judgment, which concludes by ordering that the Public Protector has to personally pay 15% of the costs on a punitive scale.
The overall conclusion is obvious: How can the Public Protector credibly remain in office after this judgment?
There is also a further important implication: last week, much time was devoted by the Zondo commission to the cross-examination of Gordhan for remarks he had made about the ex-commissioner of SARS, Tom Moyane. Leaving aside the unseemly abuse to which the witness was subjected, this judgment confirms what a waste of time it was to allow the peddling of the so-called rogue unit by counsel for Moyane. What this judgment should compel as a matter of urgency is the appearance of Moyane to testify. That should be obvious from this detailed judgment. DM