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Attorney Busisiwe Mkhwebane. (Photo: Getty Images)
- The higher court handed down a sentence, setting aside the report of the Public Protector in the so-called rogue SARS unit.
- A full bench of the court determined that Public Protector Busisiwe Mkhwebane owed Judge Sulet Potterill an apology.
- The court also referred its judgment to the Council of Legal Practice.
Public protector Busisiwe Mkhwebane owes Judge Sulet Potterill an apology for the “blisters” and “personal attacks” against the judge, the Gauteng High Court in Pretoria said.
In July last year, Potterill granted Public Enterprises Minister Pravin Gordhan an injunction against Mkhwebane’s report on the so-called rogue SARS unit.
Mkhwebane later wrote, in an affidavit to Chief Justice Mogoeng Mogoeng and the Judicial Service Commission, that in granting Gordhan the injunction, the judge was “derogatory, derogatory and was acted out of personal spite,” reported City Press.
In a conviction issued Monday, a full court at the Gauteng High Court in Pretoria struck down Mkhwebane’s report on the so-called rogue SARS unit.
The court also issued a punitive cost order against Mkhwebane, describing his conduct as “egregious,” News24 previously reported.
Mkhwebane discovered that former SARS commissioner Pravin Gordhan, who is currently the minister of public enterprises, had inadvertently misled Parliament by not disclosing a meeting he had with members of the Gupta family, and that he had violated intelligence laws by overseeing the establishment of a SARS “intelligence unit” in 2007, also known as the rogue unit.
The court said: “In our opinion, this matter shows that the public protector has not carried out its investigations in a manner appropriate to its charge.”
The judges also said, in their affidavit on the process, that Mkhwebane strongly disagreed with the interpretation adopted by Potterill, namely that the will is a requirement for a violation of the Code of Executive Ethics.
READ ALSO | High Court annuls Busisiwe Mkhwebane’s report on Pravin Gordhan, SARS ‘rogue unit’
“But instead of simply registering his disagreement with the court’s interpretation, he launched a scathing, unwarranted and personal attack on the integrity of the learned judge. He even goes as far as accusing the learned judge of ‘a gross misinterpretation of the … code. ‘and of’ deliberately omitting ‘code words, “is read in the statement.
“Apart from the fact that the personal attack against the learned judge is surprisingly inappropriate and unjustified, the Public Protector’s reading and interpretation of paragraph 2.3 (a) of the Executive Code of Ethics is incorrect under the law: the code prohibits members of the executive “intentionally” mislead the legislature The wording of the code is clear and does not contain a provision that an “innocent” error constitutes a violation of the Code of Executive Ethics.
“To claim that Potterill J ‘deliberately omitted the words’ inadvertently misleading’ from the royal code is simply astonishing. In addition to being a public protector, Attorney Mkhwebane, an officer of this court, has a duty to treat the court with the necessary decorum. ” The higher court also said that Mkhwebane not only made a mistake of law regarding the code, but also despised the court and Judge Potterill personally.
“What makes this reprehensible conduct worse is that Attorney 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 of an attorney and officer of this court. He owes Judge Potterill an apology. “
The court requested the registrar to send a copy of the judgment to the Council of Legal Practice for its consideration. He said Mkhwebane “regrets the fact that Minister Gordhan launched an attack on her integrity, which she calls ‘scandalous’ and was done in an attempt to support a ‘political crusade’ against her to mobilize ‘political support’ for his removal from his office, but has no qualms about launching a personal and searing attack on a judge in this division. “
When News24 reached out to the Public Protector’s office for comment, it said it was still studying the ruling.
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