PP's conduct found to be biased, egregious and dishonest - Malatji & Co.

Court findings vindicate Pravin Gordhan and support the evidence he tendered at Zondo Commission


Today’s judgment by a full bench of the High Court in Pretoria, against a Report of the Public Protector of 5 July 2019, is an indictment on Adv Busisiwe Mkhwebane, whose conduct was found to be biased, egregious and dishonest.

This is the third adverse High Court judgment against Adv Mkhwebane in matters that involve investigations by the incumbent to the office of the Public Protector, against our Client since 2018.

The Court has made significant pronouncements regarding some matters which have featured recently in our Client’s evidence at the Zondo Commission of Inquiry. Today’s Court findings vindicate our Client and supports the evidence he tendered at the Zondo Commission.

The primary finding in the judgment appears in paragraph 296 where the Court stated that:

“The [PP] Report fails at every point. We are satisfied that the Report is the product of a wholly irrational process, bereft of any sound legal or factual basis. It cannot stand and must be set aside. Had the Public Protector undertaken a fair and credible investigation and considered the extensive body of evidence in an open-minded manner, the report may have been an opportunity to confirm the facts and the truth thereof. Instead, she allowed her important office to be used to try and resuscitate a long-dead fake news propaganda fiction.”

In regard to the Public Protector’s bias against our Client, the Court stated in paragraph 262 that:

“The manner in which the Public Protector interacted with Minister Gordhan and Mr [Ivan] Pillay during the investigation, is, in our view, indicative of her failure to uphold the decorum demanded by the important constitutional institution she serves. Not only did she fail in her duty to afford Minister Gordhan and Mr Pillay an opportunity to make representations regarding any proposed remedial action, her conduct in specifically circumventing Minister Gordhan’s legal representatives is improper and contrary to trite legal principles.”

And at paragraph 293:

“The Public Protector’s bias against Mr Gordhan and Mr Pillay is manifest. Having regard to the manner in which the Public Protector simply dismissed out of hand and completely ignored and irrationally discarded hard facts and clear evidence, it is clear that she approached her investigation with a preconceived notion, determined to make adverse findings against Minister Gordhan and Mr Pillay, thereby promoting the false rogue unit narrative…”

On the Public Protector’s finding that the Minister misled Parliament and ‘violated’ the Executive Ethics Code, the Court found at paragraph 292 that:

The finding of the Public Protector that Minister Gordhan mislead Parliament when he was unable to remember that a member of the Gupta family was present at the Ambani meeting, is simply wrong. The Public Protector’s conclusion on the evidence in that the Code can be violated even inadvertently, is based on an error of law.”

The judgment also takes issue with Adv Mkwebane’s unwarranted attacks of Judge Sulet Potterill, who had previously granted an urgent interdict in favour of our client, against the Public Protector’s proposed remedial actions.  Adv Mkhwebane’s conduct was found to be ‘reprehensible’, and the Court has ordered that its Registrar to submit a copy of the judgment to the Legal Practice Council for its consideration.  The Court stated at paragraph 61 that:

“Apart from the fact that the personal attack on the learned Judge is shockingly inappropriate and unwarranted, the Public Protector’s reading and interpretation of paragraph 2.3(a) of the Executive Ethics Code is wrong in law: The Code prohibits members of the Executive from ‘wilfully’ misleading the legislature… To claim that Potterill J ‘deliberately omitted the words ‘inadvertently mislead’ from the actual Code, is simply astonishing.  Besides being a Public Protector, Adv Mkhwebane is [an] officer of this court owes it a duty to treat the Court with the necessary decorum. She not only committed an error of law regarding the Code but was also contemptuous of the Court and Judge Potteril personally.  What makes this reprehensible conduct worse is that the remarks by Adv Mkhwebane were made under oath, when she ought to have known about the falsity thereof. This clearly held the possibility of misleading this court. This is conduct unbecoming of an advocate and officer of this court. She owes Judge Potteril an apology.  The Registrar of this Division is requested to send a copy of this judgment to the Legal Practice Council for consideration.”

In regard to the remedial conduct against our Client, set out in the Public Protector’s Report, the Court found that Adv. Mkhwebane’s conduct:

“falls far short of the high standards demanded of her office. There has been a failure on the part of the Public Protector to afford the parties implicated in the remedial action their basic right to a fair hearing… The Public Protector's remedial action therefore falls short of the appropriate standard in that it is ineffective and incapable of being implemented.”

Regarding the so-called SARS ‘rogue unit’virtually every finding against our Client in respect of this narrative, including the findings of the Public Protector in relation thereto, was dismissed in its entirety, by the judgment in the relevant paragraphs:

“66. The sordid saga about the unit has been unfolding in the public domain over the course of many years. It paints a picture of malfeasance and impropriety, not only in respect of the establishment of the unit, but more alarming, about the alleged recalcitrant and murky activities of this unit to such an extent that this unit was labelled in the press as a ‘rogue unit.

“67 The rogue unit narrative first raised its head two weeks after Mr Tom Moyane took office as SARS Commissioner. In a newspaper report published on 12 October 2014 in the Sunday Times, it was claimed that a ‘rogue unit’ operated within SARS. Two years later and numerous similar newspaper articles, the Sunday Times unconditionally withdrew its allegations regarding an alleged ‘rogue unit’ operating within SARS and tendered an apology to SARS.  By that time the damage had unfortunately been done and those employees of SARS that have been implicated in the Sunday Times reports have already faced disastrous consequences.

“99… It is, however, clear that the Public Protector made no effort to avoid herself being drawn into the sordid rogue unit narrative, despite the fact that she must have been aware at the time of the very public denunciation of the narrative by the Sunday Times newspaper…”

In today’s judgment, the 2014 report of Adv. Muzi Sikhakhane S.C., and his panel for SARS, was found by the Court to be wrong in their conclusion that the intelligence laws were contravened with the establishment of a SARS investigative unit.  The Court found that:

“97   The Sikhakhane report had dire consequences not only for existing activities at SARS, but also for those officials implicated by the report. Following this report, Mr Moyane (the then Commissioner of SARS) removed several SARS officials from their positions…

“98 It is clear from a careful reading of the Sikhakhane report that the authors deviated from their terms of reference and made ‘factual’ findings about allegations concerning the so-called ‘rogue unit’ without affording any opportunity to those implicated in the report…

“101 In addition to the fact that the Sikhakhane report has been widely discredited, we can likewise find no factual or legal basis upon which it can be concluded that the establishment of the unit was unlawful. In as far as the Public Protector has placed any reliance on a contravention of section 3(1) of the NSI [National Strategic Intelligence] Act in arriving at a finding that the unit was unlawfully established, her conclusions are clearly wrong in law and therefore irrational and unlawful.” (our emphasis)

“204 The reasoning adopted by the Public Protector in coming to these findings, in light of the evidence available to her at the time of the Report, is illogical and clearly fallacious. For the Public Protector to conclude that the unit was in possession of equipment capable of being used to conduct clandestine activities in the absence of SARS providing the office of the Public Protector with such a list of ‘spying equipment’ is astonishing.”

On the issue of costs, the Court expressed its disquiet at the Public Protector’s dishonesty on whether she relied on the Report of the Inspector General of Intelligence, as well as on conduct which the Court described egregious. The relevant extracts of the judgment are:

302. In our view, this matter demonstrates that the Public Protector has failed to conduct her investigations in a manner befitting that office. In so doing the Public Protector acted in total disregard of the values enshrined in Sections 181(1)(a) and 182 of the Constitution which call upon the Public Protector to be impartial and exercise her powers and perform her functions without fear, favour or prejudice.

303. Where a public-office bearer does not hold herself to this high commitment to public service, as we have found this to be in this matter, a personal costs order is warranted. In the present case we hold the considered view that the Public Protector has not met the requisite standards. The fact that the Public Protector displayed dishonesty in respect of the OIGI report is, on its own, deserving of censure by this court in the form of a personal costs order against her.

304. Finally, we are of the view that costs on a punitive scale is warranted in this matter. Although we are mindful of the chilling effect a costs order on this scale may have, we are nonetheless, of the view that such a costs order is warranted in this matter where the conduct of the Public Protector can only be described as egregious. This court must, in our view, show its displeasure. In arriving at our decision, we took due cognisance of what the Constitutional Court pointed out in Public Protector v South African Reserve Bank.”

Statement issued by Tebogo Malatji, Malatji & Co., 7 December 2020