Public Protector

Public Protector Busisiwe Mkhwebane. Image via: ANTONIO MUCHAVE / Gallo

Sars Report: Mkhwebane and EFF lose Concourt appeal against Gordhan

The judgement emphasised that direct appeals, as made by Mkhwebane and the EFF are not merely available for the asking.

Public Protector

Public Protector Busisiwe Mkhwebane. Image via: ANTONIO MUCHAVE / Gallo

Public Protector Busisiwe Mkhwebane and the Economic Freedom Fighters (EFF) have lost their Constitutional Court appeal against Public Enterprises Minister Pravin Gordhan, regarding the “Sars Rogue Unit” case. The ConCourt released its judgement on Friday 29 May. 

The High Court had granted an interim interdict to suspect the operation of the Mkhebane’s remedial action contained in her report titled “Report on an Investigation into Allegations of Violations 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 Sars Report), pending the final determination of the review of that report. 


The main judgement emphasised that direct appeals are not merely available for the asking, but that exceptional circumstances ought to exist. The main judgement held that these were not present in the case and therefore militate against granting leave to appeal. 

The judgement held that the applications did not satisfy the interests of justice criteria regarding the appealability of interim orders and accordingly, leave to appeal against the merits in both applications of Mkhwebane and the EFF, was not granted. 

The main judgement did, however, grant leave to appeal against the costs orders of the High Court. 

The judgement also noted that the considerable public interest in this matter had attracted significant criticism against both the courts and the Public Protector, which is to be encouraged in our constitutional democracy. 


Mkhwebane issued the Sars report on 5 July 2019. It directed President Cyril Ramaphosa to take note of the findings of the maladministration, corruption and improper conduct and to take the necessary action against Gordhan. 

Gordhan launched an urgent application in the High Court on 10 July 2019 for an order to suspend the remedial action. The EFF then applied for and was granted leave to intervene in the High Court proceedings. 

The High Court held that Gordhan had fulfilled the requirements for an interim interdict as set out in National Treasury vs Opposition to Urban Tolling Alliance (OUTA test). The High Court thus granted the relief sought by Gordhan and suspended the remedial action contained in the Sars report, pending the judicial review of the report. 

In addition, the High Court awarded costs against Mkhwebane and the EFF. Costs were also awarded to the public protector in her personal capacity. 

Due to the outcome, the EFF and Mkhwebane each filed separate and urgent applications for leave to appeal directly to the ConCourt against the judgement and order of the High Court. Gordhan submitted that leave to appeal should not be granted because the applications did not engage the jurisdiction of the court; the applications were not urgent, and it would not be in the interests of justice to grant leave to appeal.