Gordhan vs. Mhkwebane: Malema joins court case

Economic Freedom Fighters leader Julius Malema has officially joined the legal wrangle between Public Enterprises Minister Pravin Gordhan and Public Protector Busisiwe Mkhwebane, filing an intervention application at the High Court in Pretoria.

In a 66-page affidavit, filed on Monday, Malema lists himself as the tenth respondent to an urgent application filed by Public Enterprises Minister Pravin Gordhan last week.

Gordhan’s application, a response to the Public Protector’s controversial recent report, asked the court to suspend the Public Protector’s remedial orders and to interdict her office from enforcing the orders until the judicial review of her report on Gordhan was concluded. Mhkwebane’s office is the first respondent in the matter while her office is the second respondent.

In his answering affidavit, Malema asks the court to dismiss Gordhan’s application for relief with costs.

Here are the key arguments in Malema’s affidavit.

1.       Special circumstances

The Public Protector Act states that the incumbent may investigate matters dating back more than two years under special circumstances. According to Gordhan, Mkhwebane failed to establish that there were special circumstances.

Malema, in his affidavit, alleges that the minister objects to the time frame not because of the legislative framework, but because of the findings, allegedly because Gordhan was “happy” to discuss the rogue unit at the Nugent Commission of Inquiry.

2.       The rogue unit issue is ‘of national importance’

According to Malema, the matter must be “ventilated once and for all” because South Africa must know “whether or not … the Commissioner of SARS, and [later] the Minister of Finance, abused his power by spying on private citizens”.

He further states that it’s “irrelevant” that there have already been multiple investigations into the rogue unit. “Each organ of state is entitled to give effect to its jurisdictional remit and do so independently,” the affidavit says.

3.       No law wouldn’t make it lawful

The Nugent Commission of inquiry found no evidence that the unit was established unlawfully.

However, with reference to the so-called ‘rogue unit’, the affidavit repeatedly emphasises “spying”. “A power to spy cannot be given accidentally or through inferential reasoning,” it argues. “Where no such authority exists… any conduct engaged in [is necessarily] unlawful”.

4.       KPMG, Kroon, IGI

Malema’s affidavit refers to the KPMG report on the rogue unit, saying that the auditor withdrew its recommendations but stood by the facts it uncovered.

KPMG, which offered to pay SARS back the R23m it took in fees for the report, stated in 2018: “SARS should no longer rely on the executive summary of the SARS report, which refers to conclusions, recommendations and legal opinions.”

Malema also refers to the retraction by Judge Frank Kroon of his earlier statement that the rogue unit was unlawful, saying the information provided to Kroon – including in the Sikhakane report – was not withdrawn.

Lastly, Malema cites the Inspector General for Intelligence Report. The 2014 investigation was into SSA agents Belinda Walter and Mandisa Mokwena. According to Malema, the report supports the need to re-investigate the rogue unit.

5.       There are separate issues at hand

Malema argues that even if fresh investigations into the rogue unit are discredited, there are separate findings to be addressed: the rogue unit and Gordhan’s alleged misleading of Parliament.

The Public Protector found in her report that Gordhan violated the executive ethics code. For his part, Gordhan has maintained he was “perfectly honest” when omitting a 2010 meeting – where a Gupta family member may have been present – from a response to Parliament.

6.       Gordhan is trying to have the Public Protector removed

The affidavit states that Gordhan may be “laying the foundation for the removal” of Mkhwebane. At the same time, he states that any claims he, Mkhwebane or anyone else may have anything against Gordhan is “conspiracy theory”.

Gordhan, for his part, suggested in his affidavit that the Public Protector’s report was not legally sound and based on ulterior motives.

7.       It doesn’t matter if the Public Protector is right, it matters that she’s rational

Gordhan has put forward the Promotion of Administrative Justice Act (PAJA) as grounds for reviewing the report.

Malema argues this is a last resort, because Gordhan is unable to show that the Public Protector did not act rationally and lawfully.

Further, he says, the key legal issue is not whether the Public Protector was correct, but whether she acted rationally based on the information she had before her.

8.       Issues of fairness

According to Malema, the Public Protector’s report in itself cannot do him any harm, as it merely recommends that the President take remedial action, which is not yet defined. He also says any other organ of state that takes remedial action, if necessary, will fairly consider any appropriate mitigating factors.

Malema also hits back at claims that Gordhan did not have a reasonable amount of time in which to respond to the Public Protector – something Gordhan’s spokesperson had argued early on in the investigation.

Lastly, he argues the matter isn’t urgent.

Gordhan has consistently maintained that the SARS investigative unit was established legally. According to him, the unit was established lawfully under the SARS Act, the Constitution and the National Strategic Intelligence Act, and helped the tax agency carry out its mandate of clamping down on tax evasion and illicit trade.

He further argues that the unit was not established to deal with matters of national security, but rather to gather intelligence related specifically to carrying out the tax agency’s duties.

Gordhan particularly took issue with Mkhwebane’s reliance on discredited or withdrawn reports and investigations – including those mentioned above.