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The Gauteng High Court described Mkhwebane’s conduct in the course of its investigation into Pravin Gordan and one of SARS’s so-called “rogue units” as “unsubstantiated, especially since this conclusion is based on discredited reports and unsubstantiated facts.” You must also pay 15% of the court costs.
On Monday, December 7, 2020, Gauteng Division Judges Selby Baqwa, Annali Basson and Leonie Windell ordered their findings to be sent to the Council of Legal Practice to consider Mkhwebane’s “shockingly inappropriate and unjustified” attack on the judge of the Pretoria High Court Sulet Potterill in the PP’s attempt to challenge Gordhan’s review of his report.
The judges, in a 111-page ruling, ultimately dismissed Mkhwebane’s conclusion in his report that Gordhan had established an illegal unit in SARS as “unsubstantiated, particularly as this conclusion is based on discredited reports and unsubstantiated facts.”
Their report, the court held, “fails on all points” and the judges were satisfied “that the Report is the product of a totally irrational process, devoid of any solid legal or factual basis.”
The Mkhwebane 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 Code of Ethics could be violated even inadvertently was based “on an error of law”.
“The Public Protector’s bias against Gordhan and Pillay is manifest. Considering the way in which the Public Defender simply flatly dismissed and completely ignored and irrationally dismissed the 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 narrative of the rogue unit, ”the Justices said.
Gordhan v PP – December 7, 2020 – Final 2020-12-07
There was no indication that Mkhwebane had attempted to investigate “the truth” of the claims against former Deputy SARS Commissioner Ivan Pillay and had ignored most of the evidence provided to him.
In the court’s opinion, the Public Protector had not “undertaken, as required by its office, a fair and credible investigation and open consideration of the extensive body of evidence presented to it to confirm the truth.”
Regarding Mkhwebane’s attack on Judge Sulet Potterill, who agreed to Gordhan’s request to intercept his corrective action, the judges found that the PP had been “derogatory of the court and of Judge Potterill personally”
“What makes this reprehensible behavior worse is that Adv Mkhwebane’s statements were made under oath, when she should have known they were false.
“This clearly had the potential to mislead this court. This is improper conduct by a defender and official of this court. “
The court requested that the judgment be delivered to the Council of Legal Practice.
The court ordered the Public Protector and Mkhwebane to pay the costs personally and individually. Mkwebane’s liability was limited to 15 percent.
“In our opinion, this matter shows that the Public Defender has not carried out its investigations in a manner consistent with that office,” the judges said, justifying the order for costs.
“The Public Protector proved to be dishonest with respect to the OIGI report, by itself, and deserved the censure of this court in the form of an order of personal costs against it.
Punitive-scale costs were justified in the matter, as the PP’s conduct “can only be described as egregious.” DM
