Constitutional Court ruling finally slams door on SARS ‘rogue unit’ saga

Johann van Loggerenberg during an appearance at the Pretoria Magistrate’s Court on April 09, 2018 in Pretoria, South Africa. (Photo: Gallo Images / Netwerk24 / Deaan Vivier)

By Victoria O’Regan

10 Nov 2022

Allegations surfaced in the media eight years ago about a ‘rogue unit’ within the SA Revenue Service. The controversy plagued top-rated senior SARS officials and led to a number of court cases and inquiries. Now, the Constitutional Court has finally made a ruling against suspended Public Protector Busisiwe Mkhwebane that should put the saga to rest.

On Thursday, 10 November, the Constitutional Court banged the last nail in the coffin of the infamous and discredited report into the SARS “rogue unit”, dismissing suspended Public Protector Busisiwe Mkhwebane’s application for leave to appeal.

The highest court in South Africa refused Mkhwebane’s leave to appeal application, concluding that “it bears no reasonable prospects of success”.

The court ordered Mkhwebane and her office to jointly and severally pay for the legal costs of Minister Pravin Gordhan and former SARS deputy commissioner Ivan Pillay, who she implicated in wrongdoing linked to the establishment of SARS’ High-Risk Investigations Unit in her July 2019 report.

Former SARS official Ivan Pillay. (Photo: Gallo Images / Netwerk24 / Deaan Vivier)

Then Finance Minister Pravin Gordhan. (Photo: Guillem Sartorio / Bloomberg via Getty Images)

Johann van Loggerenberg during an appearance at the Pretoria Magistrates' Court on 9 April 2018 in Pretoria, South Africa. (Photo: Gallo Images / Netwerk24 / Deaan Vivier)

Mkhwebane found that the setting up of the unit, which was approved by Gordhan, the SARS commissioner at the time, was in violation of the Constitution.

The controversy had followed Pillay and others – including former High-Risk Investigations Unit head Johann van Loggerenberg, who was also implicated in the report.

*Speaking to Daily Maverick after the ruling on Thursday, Pillay's lawyer, Bernard Hotz, described the ruling as bittersweet. "It's very sweet because justice has been served, but it's very bitter when one realises the toll that State Capture has taken on this country and especially how SARS... was decimated through the process of State Capture, and how [Pillay] and Gordhan's lives were turned into torturous nightmares for years - simply because they were doing their jobs."

Mkhwebane has consistently maintained that the then inspector-general of intelligence Faith Radebe’s 2014 report - on which Mkhwebane based her SARS “rogue unit” report - had been anonymously dropped off in the foyer of her offices. However, in August this year, it was revealed at the impeachment inquiry into the suspended Public Protector that it was the EFF’s Floyd Shivambu who had attached it to an email complaint to the Public Protector in 2019.

https://www.dailymaverick.co.za/article/2022-08-26-effs-floyd-shivambu-gave-mkhwebane-classified-sars-rogue-unit-report-hearing-told/

In 2014, the SARS so-called intelligence unit hit headlines first in Sunday Times, with claims that the “rogue unit” was set up as an illegal spying unit under former commissioner Gordhan. Three years later, in April 2016, Sunday Times retracted its series of articles on the “rogue unit” in line with a ruling by the Press Ombud.

Sanef inquiry

The South African National Editors’ Forum (Sanef) launched an inquiry, led by retired judge Kathleen Satchwell in October 2018, following the newspaper retraction and apologies for its reports on the “rogue unit” and also the so-called “Cato Manor Death Squad”.

Read more in Daily Maverick: Former Sars executive slams press over rogue unit stories

In December 2020, Gordhan successfully challenged Mkhwebane’s SARS “rogue unit” report in the Gauteng High Court in Pretoria, where judges Selby Baqwa, Annali Basson and Leonie Windell ruled that her report could not stand “and must be set aside”.

The court found her report was without foundation and based on “discredited reports and unsubstantiated facts” and was “the product of a wholly irrational process, bereft of any sound legal or factual basis”.

[embed]https://youtu.be/sK6nyPqZoKo[/embed]

Despite mounting personal cost orders, Mkhwebane remained undeterred by the Pretoria High Court’s findings, and approached the Supreme Court of Appeal (SCA) in October 2021. In January this year, Mkhwebane again lost her application for reconsideration of her petition for leave to appeal, when the SCA dismissed it.

Mkhwebane’s conduct in the course of her investigation into Gordhan and the so-called SARS “rogue unit”, as well as the wave of litigation that followed, are at the core of the Section 194 parliamentary impeachment inquiry that is investigating Mkhwebane’s fitness to hold office. DM

This is a developing story and was updated to add in the reaction from Pillay's lawyer. It may be updated further.

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