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Public Protector Advocate Busisiwe Mkhwebane. Photo: Twitter/PublicProtector

Public protector’s Sars ‘Rogue Unit’ report set aside by High Court

The Gauteng High Court in Pretoria, in a detailed judgement, said the public protector’s report ‘fails at every point’.

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Public Protector Advocate Busisiwe Mkhwebane. Photo: Twitter/PublicProtector

The Gauteng High Court in Pretoria took the decision, on Monday 7 December 2020, to set aside Public Protector Busisiwe Mkhwebane’s report into the controversial Sars Rogue Unit. 

On 5 July 2019, the Public Protector released a report “On an Investigation into Allegations of Violation of the Executive Ethics Code by Minister of Public Enterprises Pravin Gordhan, as well as allegations of Maladministration, Corruption and Improper Conduct by the South African Revenue Services”. 

Apart from the adverse findings made against Gordhan, the Report also implicates Visvanathan Pillay and George Nkgakane Vigil Magashula, both former employees at the South African Revenue Services (SARS), in serious misconduct, maladministration and criminality.

The judgement came after an application to review and set aside the Report and was launched on 10 July 2019 by Gordhan. 


The court said that the conclusion by the Public Protector “that the allegation that Minister Gordhan during his tenure as the Commissioner of SARS established an intelligence unit in violation of the South African Intelligence prescripts is substantiated,” is without foundation, particularly as the conclusion is based on “discredited reports” and “unsubstantiated facts”. 

“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 court said. 

“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,” it added. 

The court further held that there is no indication in the Report that the Public Protector had attempted to investigate the truth of the assertions against Mr Pillay. 

“She ignored the bulk of the evidence provided to her and only took into consideration allegations, however, discredited and untested, that she believed supports the continuation of the rogue unit narrative and dismissed or ignored everything that proved the lawfulness of the unit in question,” it said. 

The court said the public protector has not undertaken a fair and credible investigation and an open-minded consideration of the extensive body of evidence that was placed before her in order to confirm the truth.

“The 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,” it said. 


The public protector was also ordered, jointly and severally, to pay Gordhan, Pillay and Magashula’s costs on the scale between attorney and client. 

It was further ordered that Mkhwebane pay such costs personally with her liability limited to 15% of those costs.

When The South African contacted the public protector’s spokesperson Oupa Segalwe for further comment, he said “we haven’t got a copy of the judgement. Waiting on our attorney to share it and then the public protector will decide whether or not to comment now and what to say. At that point, I will be in a position to help.”