EFF rejects the Gauteng North High Court judgment excusing the establishment of rogue unit within SARS as lawful
8 December 2020
The EFF rejects the Gauteng North High Court Judgement which has ruled that SARS' Rogue Unit was in fact lawful. As the EFF we reject this ruling as irrational, unconstitutional and above all, as a threat to national security. In essence judges of the Gauteng North High Court are telling the country that SARS, and or any other state department, can gather covert intelligence without supporting legislation, permission from the President and by extension, any parliamentary oversight as it is required by the law.
As a point of departure we expect judges to appreciate the supremacy of the Constitution, particularly its protection of human rights found in the Bill of Rights. Citizens of this country, even if suspected of crime, have rights which those in power should never violate. No one has the power to intrude into people's privacy and invade their dignity. This is why the gathering of covert intelligence must at all times be held accountable to ensure it is done responsibly and within the confines of the law. Those charged with protection of national security, who collect covert intelligence, such as for instance Defence Intelligence, Crime Intelligence, and State Security ought to do so through legislation so that they can be held accountable.
No one in this country, acting in the name of the democratic government of the republic can ever collect covert intelligence without being held accountable through legislation, and by Parliament. The entire executive is accountable to Parliament. Even SARS itself is held accountable by Parliament. This is where the crux of the matter lies: if the SARS Cover Intelligence Gathering Unit a.k.a Rogue Unit was established, who in parliament did it report to? Who exercised oversight on its covert activities? The answer is definitively no one. Moreover, in which division of revenue did the funds for the establishment of this unit be discussed and get approved? Which appropriations budget gave funds knowingly, for a covert intelligence unit within SARS to be established? The answer is none whatsoever. At no stage did SARS or anyone include in any appropriation budget, annual report or division of revenue — the SARS Covert Intelligence Unit.
As such, this means the very funds for its establishment and functioning were never approved as none of its reports, activities or proposals ever served in any parliamentary committee. For a person seeking to protect SARS' funds in the name of "accountability", Gordhan is indeed a whited sepulchre of note!
The Office of the Inspector General for Intelligence is charged at all times to ensure compliance with the law by any intelligence services. The Intelligence Service Oversight Act even empowers the 01G, in the interest of national security, to investigate any state organ that collects or is suspected of collecting covert intelligence. This is because once activities are covert, and no one exercises oversight on them, they can compromise national security. The idea that SARS collected covert intelligence without the necessary oversight is itself a threat to National security. Moreover, if covert intelligence was collected other than that relating to tax, any responsible judge must then also worry about the security of the judiciary. If such a unit also collected covert intelligence on judges, then such information can be used to threaten judges to determine judgements in advance and in their favour.
The central thesis of the judgement is that SARS is justified to collect covert intelligence because the then National Intelligence Agency Act does not cover SARS when it prohibits the establishment of units other than NIA to combat threats to "national security". They even absolve SARS from the prohibition stated in Section 209 (1) of the Constitution that "any intelligence service, other than any intelligence division of the defence force or police service, may be established only by the President, as head of the national executive, and only in terms of national legislation". The purpose of this prohibition is to ensure that no individual gathers covert intelligence in South Africa without legislation. This is to ensure that such a service or department would establish such covert intelligence capability in a responsible manner, whilst also being held accountable through Parliament.
The Gauteng North High Court judgement also makes a fundamental mistake of thinking national security does not include criminal activities such as combating illicit trade. In paragraph 9 of the judgement, the court argues that the SARS covert intelligence gathering had nothing to do with threats to national security. Yet, at the same time, they agree SARS is charged with investigating tax avoidance or illicit trade. In any case, which judge in their rightful mind thinks illicit trade does not rob the country of its tax revenue funds and that it does not constitute a threat to national security or state security? What would happen if SARS or government could no longer find money to fund schools, hospitals, social grants, or even purchase weapons for the military or police? If the police or soldiers could not be paid their salaries would that not constitute a threat to national security?
In essence, threats to national security and stability are not limited to foreign elements threatening the sovereignty of the country. This is why Crime Intelligence in SAPS is considered part of the divisions responsible for national security and stability, despite the fact that is does not do the same job as Defence Intelligence or State Security. A mere protest to service delivery can result in the destabilisation of an entire county for many months. How much more with the destabilisation created by big companies robbing the national revenue of tax by engaging in illicit trade?
In effect, when section 3(1) speaks of laws requiring any department to "perform any functions with regard to the security of the Republic or the combating of any threat to the security of the Republic, such law shall be deemed to empower such a department to gather departmental intelligence... provided that such department of state...shall not gather departmental intelligence within the Republic in a covert manner", it is referring to SARS. This is because SARS has a duty to gather intelligence to combat crimes such as illicit trade robbing national revenue funds. However, the law expressively prohibits it not do so using covert methods; meaning it can only collect information from matters or activities done in public. When intrusive methods and equipment are utilized, this then amounts to the violation of people's constitutional rights. No legislation gives SARS such a power or mandate: legislation is what constitutes a framework to hold an entity of the law accountable, otherwise it becomes free for all!
Thus, Pravin Gordhan established an intelligence unit which used covert methods inside SARS, using state funds without any appropriation legislation approving of such funds. Not only is it against the very appropriation laws used to dispose of state funds, but also it is blatantly criminal and a threat to national security. This is what makes the Gauteng North High Court Judgement a direct threat to national security by legitimising such madness.
The EFF has therefore decided to appeal this judgement. We will challenge it to the highest court in the land.
The EFF has also written to the Parliament Joint Standing Committee on Intelligence to hold its own investigation on the Rogue Unit. We have all reasons to believe that covert intelligence was collected by SARS, using intrusive equipment purchased using state funds. All this intelligence and equipment must be unearthed recovered and put under the protection of lawful intelligence services. As long as it is not found, it remains a threat to national security. All those responsible for this crime must also be thrown in jail because they have engaged in espionage and treason.
Issued by the EFF, 8 December 2020
