Sars ‘rogue unit’ report: EFF, Mkhwebane lose ConCourt appeal against Gordhan

Their action related to a recommendation made last year by Public Protector Busisiwe Mkhwebane against Public Enterprises Minister Pravin Gordhan.

JOHANNESBURG - The Constitutional Court on Friday said a Pretoria High Court decision to award an interdict to Public Enterprises Minister Pravin Gordhan against Public Protector Busisiwe Mkhwebane was just and equitable.

Mkhwebane and the Economic Freedom Fighters (EFF) lost their appeal against the interdict, which Gordhan had obtained from the High Court.

The minister sought to suspend an order of remedial action regarding the alleged South African Revenue Service (Sars) so-called “rogue unit” while he took the public protector’s findings on review.

The public protector penned a report into the Sars intelligence unit, saying it was unlawfully constituted and conducted illegal intelligence gathering operations at the tax collection agency.

Mkhwebane had recommended that President Cyril Ramaphosa should take action against Gordhan, who was the commissioner of Sars at the time.

She and the EFF then took to the matter to the Constitutional Court. The court’s first judgment found that the enforcement of the remedial action before the review application was determined would be prejudicial to Gordhan.

And it would mean that he would be punished in terms of the remedial action, which he had successfully demonstrated was likely to be set aside.

The apex court also said that the decision of the High Court to grant the interdict would not cause any prejudice to the public protector should the enforcement of the remedial action be put on hold until the review was finalised.

This was because the remedial action did not address or promote the rights or interests of a particular person.

The upside for the public protector and EFF was that they were not liable for the costs as decided by the High Court.