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48521/19 in the Matter Between: PRAVIN JAMNADAS GORDHAN Ap

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48521/19 in the Matter Between: PRAVIN JAMNADAS GORDHAN Ap 1 IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA CASE NO: 48521/19 (1) REPORTABLE: YES (2) OF INTEREST TO OTHER JUDGES: YES (3) REVISED: YES In the matter between: DATE: PRAVIN JAMNADAS GORDHAN Applicant And THE PUBLIC PROTECTOR 1st Respondent BUSISIWE MKHWEBANE 2nd Respondent THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA 3rd Respondent THE SPEAKER OF THE NATIONAL ASSEMBLY 4th Respondent 2 THE MINISTER OF STATE SECURITY 5th Respondent THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS 6th Respondent THE NATIONAL COMMISSIONER OF POLICE 7th Respondent VISVANATHAN PILLAY 8th Respondent GEORGE NKGAKANE VIGIL MAGASHULA 9th Respondent ECONOMIC FREEDOM FIGHTERS 10th Respondent ___________________________________________________________________ JUDGMENT THE COURT INTRODUCTION 1. On 5 July 2019 the Public Protector released a report “On an Investigation into Allegations of Violation of the Executive Ethics Code by Mr Pravin Gordhan, MP as well as allegations of Maladministration, Corruption and Improper Conduct by the South African Revenue Services” (“the Report”). Apart from the adverse findings made against Minister Gordhan, the Report also implicates Mr Visvanathan Pillay and Mr George Nkgakane Vigil Magashula, the latter both former employees at the South African Revenue Services (“SARS”), in serious misconduct, maladministration and criminality. 2. Central to the findings in the Report is a unit that was established within SARS. The Report refers to this unit as an “intelligence unit” and Minister Gordhan, Mr Pillay 3 and Mr Magashula refer to this unit as the “investigative unit”. To avoid confusion, we will simply refer to this unit as “the unit” in the judgment. 3. This is an application to review and set aside the Report under the principles of the rule of law in terms of section 1(c) of the Constitution.1 4. The application was launched on 10 July 2019 by Minister Gordhan and consists of a Part A and a Part B. Part A was an urgent application seeking to suspend and interdict the enforcement of the Public Protector’s remedial orders contained in the Report, pending the determination of Part B. The relief in Part A was granted by Potteril J on 27 July 2019.2 The judgment and order contained therein were the subject of opposed applications for leave to appeal to the Constitutional Court by the Economic Freedom Fighters (“EFF”) and the Public Protector.3 The application for leave to appeal was dismissed. The personal cost order against the Public Protector (Adv Mkhwebane) was set aside and replaced by an order that the Public Protector pay the costs of Minister Gordhan, Mr Pillay and Mr Magashula. 5. The present application is Part B of the review application. 6. The respondents cited are the following: The first respondent is the Public Protector. The second respondent, Advocate Busisiwe Mkhwebane, is cited in her personal capacity. The third respondent is the President of the Republic of South Africa (“the President”). The fourth respondent is the Speaker of the National Assembly (“the Speaker”). The fifth respondent is the Minister of State Security. The sixth respondent is the National Director of Public Prosecutions (“the NDPP”). The seventh respondent is the National Commissioner of Police (“the Commissioner”). The eighth respondent is Mr Pillay. The ninth respondent is Mr Magashula. The EFF intervened during Part A in Minister Gordhan’s review application and is now the tenth respondent. 1 Act 108 of 1996. Minister of Home Affairs v Public Protector 2018 (3) SA 380 (SCA). 2 Gordhan v Public Protector (48521/19) [2019] ZAGPPHC 311; [2019] 3 All SA 743 (GP) (29 July 2019). 3 Economic Freedom Fighters v Gordhan and Others; Public Protector and Another v Gordhan and Others [2020] ZACC 10. 4 7. The Public Protector, Advocate Mkhwebane, and the EFF oppose the application and filed answering affidavits. The President abides the outcome, except for the striking out of a few words re the remedial action. He filed a supporting affidavit and heads of argument. The Minister of State Security also abides the outcome and filed a supporting affidavit and heads of argument. The Speaker, the NDPP and the Commissioner do not oppose the application, and filed notices to abide. 8. Mr Pillay, the eighth respondent, delivered an affidavit in support of the relief sought by Minister Gordhan in Part A, but subsequently launched a substantive application, supported by a founding affidavit, to intervene as a further applicant in Part B to review and set aside the Report ("Mr Pillay’s application"). His founding affidavit sets out in detail the grounds upon which he, in his own right, seeks the review and setting aside of the Report. 9. None of the parties have opposed Mr Pillay’s application to intervene in the matter and the Public Protector has approached the matter on the basis that Mr Pillay had already successfully intervened in the matter. Mr Pillay clearly has a direct and substantial interest in the review application as he is directly implicated by the Report. Leave is granted to him to intervene. 10. Mr Magashula, the ninth respondent, filed a notice to abide but also filed an affidavit seeking an order that the findings and the remedial action ordered against him be reviewed and set aside. 11. In essence, there are, therefore three review applications before the court. We propose to deal with Minister Gordhan’s, Mr Pillay’s and Mr Magashula’s applications separately, although there is a significant overlap in the evidence pertaining to the Public Protector’s findings against these three individuals. THE RELIEF SOUGHT 12. The applicants seek relief in the following in terms: 5 i. The Public Protector’s decision in terms of section 6(9) of the Public Protector Act,4 (“the Public Protector Act”) to entertain the complaints upon which she reported in the Report, is reviewed, declared unlawful and set aside. (Paragraph 5.1 of the Notice of Motion). ii. The Report is reviewed, declared unlawful and set aside. (Paragraph 5.2 of the Notice of Motion). iii. It is declared that the Public Protector and Advocate Mkhwebane personally, acted in breach of their constitutional duties to be independent and to exercise their powers and perform their functions without fear, favour or prejudice. (Paragraph 5.3 of the Notice of Motion). iv. It is declared that the Public Protector and Advocate Mkhwebane personally, dishonestly or, alternatively, recklessly made her findings in the Report against the applicants in that they knew that the findings were false or were reckless as to their truth. (Paragraph 5.4 of the Notice of Motion). v. The Public Protector and Advocate Mkhwebane personally are ordered, jointly and severally, to pay the applicants’ costs on the scale between attorney and client. (Paragraph 5.5 of the Notice of Motion). 13. During the hearing of the matter the declaratory relief sought against the Public Protector and Advocate Mkhwebane in paragraphs 5.3 and 5.4 of the Notice of Motion were not persisted with by the applicants. 14. The Public Protector brought two applications: Firstly, an application to strike out certain paragraphs in Minister Gordhan’s founding affidavit, and, secondly, a counter-application for an order that “Minister Gordhan had a constitutional duty in terms of section 181(3) of the Constitution5 to assist and protect the independence, 4 Act 23 of 1994. 5 Supra. Section 181 provides that: “(1) The following state institutions strengthen constitutional democracy in the Republic: (a) The Public Protector. (b) The South African Human Rights Commission. (c) The Commission for 6 impartiality, dignity and effectiveness of the Public Protector and that he has failed to do so.” We deal with these two applications separately later in the judgment. THE COMPLAINTS 15. On 11 October 2018 and 8 November 2018, the Public Protector received two complaints; one by an anonymous whistle-blower and the other by Mr Floyd Shivambu (the Deputy President of the EFF). 16. In the EFF complaint it is, inter alia, claimed that Minister Gordhan “willingly established an intelligence unit against the Intelligence Laws of South Africa”. The EFF relies on the SARS investigation report compiled by the Sikhakhane panel. The Sikhakhane panel was an external panel appointed in September 2014 by Mr Pillay to conduct an investigation into allegations of impropriety against Mr Johan van Loggerenberg (“Mr Van Loggerenberg”), SARS Group Executive at the time. The panel was chaired by Adv. Sikhakhane. The Sikhakhane report is dealt with in more detail later in the judgment. GROUNDS OF REVIEW 17. Mr Gordhan and Mr Pillay seek to review and set aside the report of the Public Protector on various grounds. Firstly, on the basis that she has no jurisdiction over the complaints under section 6(9) of the Public Protector Act. Secondly, that the Public Protector has failed to exercise her powers and functions in compliance with the Constitution and the Public Protector Act in that she had failed to act independently, the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities. (d) The Commission for Gender Equality. (e) The Auditor-General. (f) The Electoral Commission. (2) These institutions are independent, and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour, or prejudice. (3) Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions. (4) No person or organ of state may interfere with the functioning of these institutions. (5) These institutions are accountable to the National Assembly, and must report on their activities and the performance of their functions to the Assembly at least once a year.” 7 impartially, and without fear, favour or prejudice.
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