Mkhwebane suffers third strike as court sets aside remedial action aimed at former SARS deputy Ivan Pillay

By Marianne Thamm

8 Aug 2022

A third report by the suspended Public Protector has been set aside on judicial review.

The high court in Pretoria on 8 August issued a Consent Order which set aside and declared unlawful the Public Protector’s Report of 2022/23 titled “Allegations of maladministration and improper conduct relating to irregular procurement processes by the South African Revenue Services (SARS) in the appointment of Budge, Barone & Dominick (Pty) Ltd (BB&D)”.

The court found that Mkhwebane had failed to give notice to Pillay of the investigation, that he had not been granted the right to be heard on the remedial action and that none of the rights to which Pillay had been entitled to in terms of section 7(9) of the Public Protector Act (23 of 1994) were afforded to him. As such his constitutional rights had been breached. The Public Protector (PP) was ordered to pay costs.

Mkhwebane’s failure to apply audi alteram partem (the right to reply) in several investigations and reports issued by her office has emerged as a modus operandi during her term.

The PP report dealt with the contract awarded to Budge, Barone & Dominick in 2006 by then SARS Commissioner Pravin Gordhan.

On 1 June the Pretoria high court found that Mkhwebane’s remedial action with regard to Independent Directorate Investigative Directorate (Ipid) head Robert McBride, and seven other Ipid officials was also unlawful and should be set aside.

The court ordered this on the basis of “procedural unfairness” and irrationality in law, in that Mkhwebane had failed to invite the applicants to make representations.

McBride’s matter related to a core group of investigators at Ipid during the peak State Capture years of 2016/17 probing corruption in senior SAPS ranks, faced relentless harassment, persecution, suspensions, death threats and trumped-up charges.

Ipid had been instrumental in blocking the attempt by SAPS Crime Intelligence in 2017 to illegally procure a listening device at the inflated cost of R45-million before the ANC’s elective conference at Nasrec.

In March 2020, Ipid investigator Mandla Mahlangu, who was due to testify in an internal Crime Intelligence investigation into a “jobs-for-favours” racket, was murdered on his farm.

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The alleged hitman, Khumbulani Sithole, was arrested a while later and allegedly confessed to investigators that he had been paid by the police to assassinate the investigator.

Mkhwebane, in that instance, had been prompted to institute the investigation after a complaint lodged by a former Ipid employee-turned-CI operative Cedrick Nkabinde.

Mkhwebane had initially failed to disclose that Nkabinde had been the complainant and only revealed this crucial fact later in court papers.

Nkabinde, before he was suspended from Ipid in May 2018, was the principal investigator in a case against the amazingly elusive criminal fugitive and CI operative, Captain Morris “KGB” Tshabalala.

Tshabalala was arrested in January 2018 for allegedly defrauding CI of a more than R50-million budget allocated to him during the ANC’s 2012 elective conference in Mangaung.

Ivan Pillay, along with Gordhan and former High-Risk Investigative Unit head, Johan van Loggernberg had all been targets of investigation by Mkhwebane. Van Loggerberg also testified to Mkhwebane’s impeachment inquiry that she failed to offer the “audi” principle in his matter as well.

In the latest matter, Pillay was the applicant with respondents being the Public Protector, the Minister of Finance, the AG of South Africa, the head of the Directorate of Priority Crime Investigation, the DG of treasury, the Commissioner of SARS, Pravin Gordhan, Oupa Magashula, Tom Moyane, Edward Kieswetter and Barry Hore.

In the two previous Reports (No. 24 of 2019/20 and No. 36 of 2019/20) that were also set aside by the courts, Mkhwebane made adverse findings against Pillay regarding his early retirement from SARS and his pension benefits, his appointment as the former SARS Deputy Commissioner, and also implicated him in the establishment of a SARS investigative unit, deemed by the Public Protector to be “rogue”.

Pillay last week testified and was cross-examined for ten hours before the section 194 parliamentary hearing into Mkhwebane’s fitness to hold office.

Read more on Daily Maverick: Inside Busisiwe Mkhwebane's State Security Agency-riddled Public Protector's Office

It was then that Advocate Dali Mpofu, for Mkhwebane, remarked that court judgments were “merely opinions”.

“Apart from the fact that a judgment is an opinion of a court, all these judgments are wrong, factually and otherwise. Must I admit to all that fake news?” Mpofu asked when aspects of these judgements were highlighted at the committee.

While he had earlier stated that Pillay’s retirement had nothing to do with the inquiry into Mkhwebane, Mpofu proceeded to spend most of the day on exactly this matter.

Pillay’s 40-year friendship with Gordhan was probed as well as Pillay’s educational qualifications. The cost for Pillay of challenging Mkhwebane’s various reports totalled R4-million.

On Friday, Pillay highlighted a litany of similar abuses of power in the investigations conducted by the Public Protector against him. DM

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