Public Protector Busisiwe Mkhwebane isn’t happy about the Supreme Court of Appeal’s refusal to consider her challenge to the invalidation of her SARS "Rogue Unit" report – and is fighting for the court to reconsider that decision. 

On Friday, Mkhwebane filed a 166-page application for reconsideration of the Appeal Court’s dismissal of her latest effort to defend her "Rogue Unit" report, which was roundly lambasted by a full bench of the Gauteng High Court in Pretoria in December last year. 

High Court Judges Selby Baqwa, Annali Basson and Leonie Windell found that Mkhwebane’s conclusion that Pravin Gordhan had established an illegal unit at SARS was "without foundation, particularly as this conclusion is based on discredited reports and unsubstantiated facts".

The court also found that the report "fails at every point" and was "the product of a wholly irrational process, bereft of any sound legal or factual basis".

"The Public Protector’s bias against Mr Gordhan and [former deputy SARS commissioner Ivan] 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," said the judges.

The full bench ordered Mkhwebane to personally pay 15% of the legal costs of Gordhan’s legal challenge to that report, based on her "egregious" conduct during the case.

Mkhwebane has made it clear that she does not accept that ruling, but her efforts to overturn it were rejected by both the High and Appeal Courts.

Two judges of the Appeal Court last month dismissed Mkhwebane’s efforts to appeal the invalidation of the report, on the basis that it had "no reasonable prospect of success" and that there was no other reason why it should be heard.

The Public Protector has now appealed directly to Appeal Court President Mandisa Maya and argues that, should her "Rogue Unit" appeal not be heard, "the office of the Public Protector will suffer irreparable harm in that those who bear political power will always undermine the constitutional mandate of the office as well as the incumbent Public Protector".

Mkhwebane has again sought to revive her arguments that she was not only entitled to investigate the establishment of an intelligence unit at SARS in 2007, but that she also had a strong basis to find that it was unlawful – an argument that was dismissed by the High Court.

She also continues to insist that Gordhan should face jail time for "insulting" her and questioning her integrity and motives in pursuing the "Rogue Unit" investigation against him. While the full bench of the High Court did strike certain parts of the minister’s claims about Mkhwebane from his application, it did not find him guilty of criminal contempt – as she had argued it should.

'Inadvertently misled'

Finally, Mkhwebane wants the Appeal Court to reconsider the 15% personal costs issued against her by the High Court, which she has argued was part of a "tendency" by that court.

"This tendency points to a worrying trend and legitimate concerns of institutionalised judicial bias against the Public Protector particularly in the North Gauteng High Court," Mkhwebane’s lawyers have previously argued.

Her lawyers further argued that, although she may have made legal errors in her "Rogue Unit" report, "there are no valid grounds to make the findings of dishonesty, bias and or ulterior motives on the part of the Public Protector". 

The Public Protector had also found, as part of her report, that Gordhan had violated the Executive Ethics Code by deliberately misleading the National Assembly in 2016, when he failed to remember that a member of the Gupta family may have present at a 2010 meeting he held with "a certain Mr Ambani".

When Gordhan argued that his memory had failed him and he had not intentionally lied to Parliament, Mkhwebane insisted that – even if this was the case – he was still guilty of violating the Code. The Code, however, makes it clear that it is only an offence to wilfully or deliberately mislead the National Assembly.

When Judge Sulet Potterill granted Gordhan’s application for an interdict blocking the enforcement of Mkhwebane’s remedial action against him in the Rogue Unit report, she corrected the Public Protector on this issue. Mkhwebane then accused the judge of "deliberately" omitting the words "inadvertently mislead" from the actual Code.

The High Court found that this claim was "simply astonishing" and directed that a copy of its judgment be sent to the Legal Practice Council "for consideration" of Mkhwebane’s conduct. 

That ruling now stands – unless Maya decides to grant Mkhwebane’s application for a reconsideration of her "Rogue Unit" appeal. Such reconsiderations are rare and only granted under exceptional circumstances.