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Gordhan vs Mkhwebane: Court erred in interdicting Mkhwebane from executing ‘remedial action’

By BO Staff Writer


On 5 July this year, the Public Protector (PP) Busisiwe Mkhwebane made adverse findings and imposed appropriate remedial action against Pravin Gordhan, the then commissioner of the South African Revenue Service (SARS) in relation to the establishment of the Rogue Unit in 2007 at SARS.

The report of the PP has been taken on review by Gordhan to the North Gauteng High Court in Pretoria. Moreover, Gordhan and President Ramaphosa have in a separate case approached the High Court to suspend the execution of the PP’s remedial action pending the outcome of the review application by Gordhan to set aside the PP’s report.

Last Tuesday, 23 July 2019, the High Court in Pretoria reserved its judgment in the Gordhan Rogue unit application to suspend the execution of the PP’s remedial action.

Judgement by Judge Potterill

Today, Judge Sulet Potterill ruled that the PP had no jurisdiction to deal with the Gordhan matter relating to the SARS Rogue Unit saga as it is about ten years old; and the Public Protector Act 23 of 1994 only allows for investigation into cases that are less than two years old. However a reading of Section 9 of the Public Protector Act suggests that the Court clearly erred in its ruling in this respect. It provides that the PP may in special circumstances, within her discretion, entertain a complaint or matter referred to her if it goes beyond the period of two years from the date of the incident or matter having occurred. More specifically Section 9 of the Public Protector Act provides as follows:

“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.”

Evidently all the other findings of the Court flows from this erroneous ruling. It accordingly follows that the Court also erred in ruling that: Gordhan has a prima facie right to be granted the interdict; Gordhan has a prima facie case to review the PP’s report; the PP’s orders are vague, nonsensical and contradictory; and there was a clear case for judicial interference.

Findings and remedial action in terms of the Public Protector’s Report regarding the Rogue Unit

The material findings of the PP’s report include the following:

1. Gordhan lied to Parliament in that he did not disclose his meeting with a Gupta family member. His failure to remember what happened during the meeting with a Gupta family member was improbable .

2. SARS establishment the Rogue Unit, initially named the Special Projects Unit in 2007, later named the High Risk Investigations Unit (HRIU) was unlawful. Oupa Magashula, who was appointed as SARS commissioner on 30 Jul 2009, lied to the PP by denying the existence of the Rogue Unit. The Rogue Unit was set up without the involvement of the State Security Agency (SSA). SARS started operating the Rogue Unit under the then finance minister Trevor Manuel. Gordhan as the SARS Commissioner at the time, ought to have known of this. The SARS Commissioner was accountable, as the accounting officer.

3. The Rogue Unit ‘obtained illegal equipment to conduct intelligence operations’.
To this end evidence in possession of the PP confirmed the existence of intelligence equipment in the possession of the SARS Rogue Unit.

The relevant remedial action of the PP constitute the following:

1. Within 30 days of the PP’s report, appropriate disciplinary action must be taken by Ramaphosa against Gordhan for violating the Constitution and Executive Ethics Code.

2. Within 60 days of the PP’s report, criminal investigation must be conducted into the conduct of Pravin Gordhan, Ivan Pillay and other officials involved in the SARS Rogue unit for contravening section 209 of the Constitution and Section 3 of the National Strategic Intelligence Act. Moreover Oupa Magashula must also be investigated for lying under oath.

3. Within 4 days of the PP’s report, the said report must be referred the Joint Committee on Ethics and Members’ Interest of Parliament.

Quite evidently, the Rogue Unit was set up at SARS to give it intelligence capabilities to spy on politicians and other entities – in service of the agenda of white monopoly capital so as to further regime change at the relevant time.

Part of the material evidence, as revealed in the Sunday Times between from 2014 to 2015, is that the Rogue Unit had bugged President Zuma’s home in Forest Town as well as the offices of the National Prosecuting Authority (NPA) in 2007; had a slush fund of millions; and had conducted covert spying operations on politicians.

Case law

The Chief Justice Mogoeng Mogoeng via the Constitutional Court (CC) in the Nkandla case, legally settled and to this end restored the powers of the PP’s Office and its credibility. This means that the PP’s findings and remedial actions (and that of other state institutions) are legally binding. So the Court is bound by its previous decision and cannot now dismiss Mkhwebane’s finding’s and remedial actions – unless such has been set aside by a Court of Law, which has not happened.

When both the legislature led by Baleka Mbete as Speaker and the executive led by President Jacob Zuma at the relevant time did not comply with the findings and the remedial action about Nkandla of the previous PP Madonesela, the Constitutional Court (CC) via Chief Justice Mogoeng Mogoeng ruled in 2016 that the said remedial action was binding and to this end must be implemented. The ConCourt in the Nkandla case certainly favors enforcement of the Public Protector‘s remedial action against Gordhan in Rogue Unit decision.

Closing remarks

The PP’s remedial action has been undermined by the Court. This sends a strong signal that the PP has no legal standing and commands no respect. This is so notwithstanding the fact that the Office of the PP is derived from the Constitution which subjects society to adherence to the Rule of Law.

In terms of Sections 181 and 182 of the Constitution of SA, which has established the PP, the PP has the power to ‘take appropriate remedial action’. Moreover, the Office of the PP is governed by the Public Protector Act and to this end Section 6 thereof is instructive.

The manifestly wrong decision by the Pretoria High Court today gives Gordhan and Ramaphosa carte blanch to continue operating mechanisms like the Rogue Unit. They are free to conduct themselves with impunity, at the behest of white monopoly capital. This is a further indication that the South African judiciary is captured by the same white interests. It also confirms the suggestion that the judiciary is an arm of white monopoly capital.

The judiciary is used to undermining and intimidating those like the PP who want radical economic transformation. Should the judiciary carry on in this way the people will continue losing faith in it.


1. ‘The Constitution of South Africa’, see link, http://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng.pdf)

2. ‘Mkhwebane finds Gordhan violated executive ethics code, SARS ‘rogue unit’ was unlawful’ See link, https://www.news24.com/SouthAfrica/News/mkhwebane-finds-gordhan-violated-executive-ethics-code-sars-rogue-unit-was-unlawful-20190705

3. ‘EXPLAINED: The Public Protector’s findings and how they bind (and help) Ramaphosa, Gordhan’ by Pieter du Toit. See link,

4. The Public Protector Act 23 of 1994, see link http://www.justice.gov.za/legislation/acts/1994-023.pdf

5. ‘Gordhan vs Mkhwebane: Court grants interdict against Protector’s ‘remedial action’, by Lou-Anne Daniels and Ana. See link, https://www.iol.co.za/news/politics/gordhan-vs-mkhwebane-court-grants-interdict-against-protectors-remedial-action-30023451