EFF tells court 'horse has bolted' on disclosure of SARS 'rogue unit' report
7 November 2019
The EFF has told the Gauteng High Court in Pretoria that an application by State Security Minister Ayanda Dlodlo to have a top-secret Inspector General of Intelligence (IGI) report kept secret is an abuse of judicial resources.
Dlodlo forged ahead with her court bid to keep a 2014 report by the IGI into the SARS "intelligence" or "rogue unit" secret despite the EFF having already published it on its website.
Counsel for the party further enforced its argument by pointing out that the report was part of court records because it was filed by Public Protector Busisiwe Mkhwebane as well as being an annexure to EFF leader Julius Malema's affidavit.
Dlodlo tendered a redacted version of the report on Tuesday, and it is now up to the court to decide whether the unredacted version will remain part of the public record.
The EFF made the report publicly available after Judge Roland Sutherland dismissed an application by Public Enterprises Minister Pravin Gordhan to have it scrapped from the papers of EFF deputy chairperson Floyd Shivambu in the Equality Court.
Gordhan had asked the court to declare comments made by Malema as hate speech, particularly that Gordhan was "a dog of white monopoly capital".
Gordhan lost the matter.
On Wednesday, the court heard arguments in an interlocutory application brought by Dlodlo in the ongoing review application of Mkhwebane's report, brought by Gordhan, on Gordhan and the SARS unit.
Mkhwebane made sweeping findings against him, including that he deliberately misled Parliament and that he was to be held responsible for the establishment of an unlawful "intelligence service" at the tax agency in 2007.
Gordhan earlier obtained an interdict, supported by President Cyril Ramaphosa, preventing Mkhwebane from enforcing the remedial actions in her report, which included that Ramaphosa take disciplinary action against Gordhan and that the police launch a criminal investigation into Gordhan and the activities of the "rogue unit".
On Wednesday, the EFF, for its part, opposed Dlodlo's application, with advocate Tembeka Ngcukaitobi arguing the horse had bolted and that Dlodlo's bid amounted to an abuse of judicial resources.
The EFF further argued that the IGI report was already public and its contents already well-reported. It also asked the court for an order declaring that it may possess it.
In this vein, the EFF asked the court for declaratory orders confirming that the report be publicly disclosed and the party may possess it.
Ngcukaitobi pointed to an affidavit by former SARS enforcement boss Johann van Loggerenberg, attached as an annexure to former SARS deputy commissioner Ivan Pillay's affidavit that was filed in in opposition to the relief sought by the EFF, as an example of such a public disclosure.
"This document," he said, referring to the Van Loggerenberg affidavit, "has been in the bundle of [court] documents since September".
Van Loggerenberg's affidavit contains explosive revelations about operations undertaken by State Security Agency (SSA) agents to undermine SARS, and sets out in detail why the narrative of the "rogue unit" was flawed and false.
It also names the SSA operatives and their sources, methods of the SSA and intelligence gathering techniques. This is the basis of Dlodlo's argument for why the IGI report must remain secret.
News24 previously reported that Van Loggerenberg had provided the same information to the IGI during its investigation in 2014.
Pillay is a respondent in the main review application and he supported Dlodlo's application.
Van Loggerenberg accused the EFF of a "blatant act of political opportunism" in trying to "slip" the IGI report into its court papers in an attempt to "bolster the Public Protector's defence" of her report.
Mkhwebane, in papers and during oral argument by her counsel, made a significant admission that she had relied on the IGI report in reaching her findings.
This admission is likely to play a major role in the main review application because in her report she never directly refers to the IGI report as a documentary source.
Instead, she alludes in the report to documents not named due to their nature, and later when referencing the IGI report refers to "evidence before her".
Mkhwebane's affidavit filed in opposition to Dlodlo's application read: "There is no legal or constitutional basis on which it is justifiable to interdict the release, publication and/or public access of the IGI report.
"In any event, the remedy of the interdict is superfluous and cannot cure the alleged prejudice which the applicant [Dlodlo] contends for in support of the relief. The IGI report is already in the public domain by virtue of it being referenced in this application and in any event, since the publication and release of my report to the public. As stated above, I refer to and rely on the IGI report in a number of findings."
Neither Mkhwebane nor the EFF, during oral argument or in their papers, disputed Van Loggerenberg's affidavit or any part thereof.
Significantly, Van Loggerenberg disputes the jurisdiction and veracity of the findings in the IGI report.
Counsel for the EFF also appeared to have confused SSA operatives with officials employed by SARS to work in the intelligence unit.
At one stage, Ngcukaitobi read from Van Loggerenberg's affidavit a series of names, including Thulani Dlomo, Inzo Ismael, Mandisa Mokwena and Madelein Schlenter, telling the court that Van Loggerenberg had confirmed that these individuals had SARS contracts and employee numbers, but were in fact SSA spies.
In fact, Van Loggerenberg's affidavit identified these individuals as some of the names he himself had provided to the IGI during two interviews held with him in 2014 during the investigation by the intelligence watchdog.
He does not state that these individuals at any time worked for SARS as part of the "rogue unit".
"It is most significant, based on Mr Malema's allegations of what the report contains and the media reports, that the very persons and entities that I implicated at the IGI, appear to have been uncritically relied upon," Van Loggerenberg's affidavit read.
He then named Dlomo , Ismael, Mokwena, Schlenter as well as Belinda Walter, Chris Burger, Hawks officials Casper Jonker, crime intelligence official Hennie Niemann and one-time SARS employee Mike Peega.
The Gordhan versus Mkhwebane case will continue in the Constitutional Court on November 28. Mkhwebane and the EFF filed papers intending to oppose the interdict obtained by Gordhan prohibiting her from enforcing her remedial actions.
Mkhwebane has since done an about-turn and withdrawn her application while the EFF's application stands.
Ramaphosa, meanwhile, filed papers urging for the case to be heard regardless of Mkhwebane's withdrawal, as the issues contemplated had a serious constitutional bearing on the functions of the Office of the Public Protector.
It is expected the main part of Gordhan's application, the review of Mkhwebane's report, will go ahead next year following the finalisation of the ConCourt proceedings.
Judgment in Dlodlo's interlocutory application, argued on Wednesday, is expected to be handed down before the end of the court term this year.