Mkhwebane instructs Ramaphosa, SA Police to take swift action against Gordhan over ‘rogue unit’

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PRETORIA, July 5 – Public Protector Busisiwe Mkhwebane on Friday instructed different functionaries of government, including President Cyril Ramaphosa and the South African Police Service, to take action against Public Enterprises Minister Pravin Gordhan for his role in the establishment of a so-called rogue spying unit at the SA Revenue Service.

In her report, released at a media briefing in Pretoria, Mkhwebane directs Ramaphosa to “take note of the findings in this report in so far as they related to the erstwhile minister of finance Mr Gordhan and to take appropriate action against him for his violation of the Constitution and the Executive Ethics Code within 30 days of issuing this report”.

“The Speaker of the National Assembly – within 14 days of receipt of this report, [should] refer Mr Gordhan’s violation of the Code of Ethical Conduct and Disclosure of Members’ Interests for Assembly and Permanent Council Members to the Joint Committee on Ethics and Members’ Interests for consideration in terms of the provisions of paragraph 10 of the Parliament Code of Ethics.”

To national police commissioner, Khehla Sitole, the public protector on Friday instructed that he within 60 days, “investigate the criminal conduct of Messrs Gordhan, [former deputy commissioner of the SA Revenue Service Ivan] Pillay and officials involved in the SARS intelligence unit, for violation of section 209 of the Constitution and section 3 of the National Strategic Intelligence Act”. She also instructs the police to take action against Gordhan’s successor at SARS, Oupa Magashule for “lying under oath”.

Mkhwebane added that she “looks forward to the full implementation of remedial action in all these reports”.

“I reiterate that the mere action of instituting review proceedings does not suspend implementation. If anyone wishes to both institute review proceedings and suspend the implementation, I advise them to obtain a court interdict staying implementation. It is important that we draw a distinction between an appeal and a review. Failure to do this might amount to acting in a manner that is inconsistent with the Constitution and the law,” said Mkhwebane.

The public protector has been investigating the alleged establishment of an intelligence unit in violation of the country’s intelligence code during Gordhan’s tenure as SA Revenue Service commissioner in 2007.

“The allegation that Mr Gordhan during his tenure as the Commissioner of SARS established an intelligence unit in violation of the South African Intelligence prescripts is substantiated. In terms of the national legislation, SARS is not mentioned as one of the National Intelligence Structures established in terms of the National Strategic Intelligence Act (NSI Act) and can only work with other law enforcement agencies within the principles of co-operative government in achieving it objectives,” said Mkhwebane.

“SARS under the guidance and management of Mr Ivan Pillay as General Manager: Enforcement and Risk Division established an intelligence unit without the involvement of National Intelligence Agency (NIA) now known as the State Security Agency (SSA).”

Mkhwebane said evidence indicated that SARS established and operated a unit that gathered information covertly.

“As the Accounting Officer, Mr Gordhan should have been aware, and I believe, was aware that the unit had already started operating. Mr Pillay reported directly to Mr Gordhan as Commissioner of SARS. The establishment of the unit with the approval of Mr Gordhan as the erstwhile accounting officer was in breach of section 209 of the Constitution in terms of which only the President may establish such covert information gathering units,” said Mkhwebane.

“I further noted that Mr Magashula [Oupa Magashula former head of the SARS] had misrepresented himself under oath by denying the existence of an intelligence unit. Even if the unit was never called the rogue unit at SARS, the operations and functions of the CBCU, a unit that existed, were similar. The conduct of Mr Gordhan as referred to in the establishment of the intelligence unit at SARS is improper and in violation of section 209 of the Constitution and therefore amounts to maladministration as envisaged in section 182(1) of the Constitution and abuse of power as envisaged in section 6(4)(ii) of the Public Protector Act.”

– African News Agency (ANA)