Gordhan v PP 7 December 2020 - final 2020-12-07

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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 48521/19
In the matter between:
PRAVIN JAMNADAS GORDHAN Applicant
And
THE PUBLIC PROTECTOR
BUSISIWE MKHWEBANE
THE PRESIDENT OF THE REPUBLIC OF SOUTH
AFRICA
THE SPEAKER OF THE NATIONAL ASSEMBLY
1st Respondent
2nd Respondent
3rd Respondent
4th Respondent
(1) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED: YES
DATE:

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THE MINISTER OF STATE SECURITY
THE NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
THE NATIONAL COMMISSIONER OF POLICE
5th Respondent
6th Respondent
7th Respondent
VISVANATHAN PILLAY
GEORGE NKGAKANE VIGIL MAGASHULA
ECONOMIC FREEDOM FIGHTERS
8th Respondent
9th Respondent
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

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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.

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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:

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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
the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities.

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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,
impartially, and without fear, favour or prejudice. Thirdly, that the Public Protector took
(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.”

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into account irrelevant considerations, relied on discredited reports and failed to take
into account the extensive evidence that was placed before her, particularly in the
detailed affidavits submitted by Mr Pillay. Fourthly, that the Public Protector’s remedial
action is ultra vires, unlawful, incapable of being implemented and falls short of the
appropriate standard. Finally, the applicants seek to review the Report on the basis of
the Public Protector's manifest bias against the applicants.
18. The applicants submit that the failure of the Public Protector to act in a manner
consistent with the high standards expected from a person occupying the office of the
Public Protector, resulted in the Report containing conclusions that are not only
irrational, but also materially informed by errors of law. The Report, so it is argued, is
the product of a procedurally flawed process, influenced by her manifest bias and use
of her powers for an ulterior purpose, during which the principles of audi alteram
partem rule have been ignored.
JURISDICTION
19. It is apposite at this stage, before turning to the findings made against Minister
Gordhan, Mr Pillay and Mr Magashula, to consider the first ground of review, namely
that the Public Protector had no jurisdiction over the complaints made under section
6(9) of the Public Protector Act. As stated, both Minister Gordhan and Mr Pillay raised
this issue with the Public Protector. For purposes of discussion, we will, however, only
focus on the Gordhan’s correspondence and engagement with the Public Protector.
20. Section 6(9) of the Public Protector Act reads as follows:
“Except where the Public Protector in special circumstances, within his or her
discretion, so permits, a complaint or matter referred to the Public Protector
shall not be entertained unless it is reported to the Public Protector, within two
years from the occurrence of the incident or matter concerned.”
21. The Public Protector therefore has to establish the existence of special
circumstances before embarking on an investigation of complaints where such

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complaints have been referred more than two years from the occurrence of the
incident or matter concerned.
22. The complaints in the present case refer to matters that are older than two
years and in some of instances more than ten years older. Minister Gordhan, acting
through his attorney (and reacting to public reports that the investigation against him
was proceeding), requested the Public Protector on 27 March 2019 to identify the
special circumstances on which she relied in terms of section 6(9) in order to pursue
an investigation against Minister Gordhan. The Public Protector did not respond and
instead issued Minister Gordhan with a section 7(9) notice on 8 April 2019.
23. Upon the failure to elicit a response from the Public Protector, Minister
Gordhan, through his attorney, pursued the matter further and again requested the
Public protector to identify the “special circumstances” permitting her to investigate the
complaints against Minister Gordhan. The Public Protector responded on 24 April
2019 by stating that she had been reliably informed that:
“the surveillance equipment illegally acquired at astronomical costs, is still
being utilised to intercept communications between people by the unit which
was not completely disbanded. So this was a matter of special interest as
public funds are still being used for illegal purposes.”
24. It would appear from the above explanation that this was a reference to the
complaint regarding the purchase of equipment by SARS. This explanation, however,
failed to explain the exercise of her discretion over the remaining issues raised in the
complaints.
25. When the Public Protector served a section 7(9) notice on Minister Gordhan
on 3 June 2019 she provided additional factors which she perceived constituted further
special circumstances justifying her decision to investigate:
“…consideration is given to the nature of the complaint and the seriousness
of the allegations; whether the outcome of the investigation into the complaint

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can rectify systemic problems in state administration; whether the matter can
be successfully investigated, with due consideration to the availability of
evidence and/or records relating to the incident(s); whether there are any
competent alternative remedies available to the complainant and overall
impact of the investigation; whether the prejudice suffered by the complainant
persists; whether refusal to investigate the matter perpetuates the violation of
Section 195 of the Constitution and whether the remedial action will redress
the imbalances of the past. What constitutes ‘special circumstances’ will
depend on the merits of each case”.
26. Notably, these additional or new factors bore no resemblance to the “special
circumstances” which the Public Protector had furnished in her previous
communication regarding the purchase of equipment by SARS. Also notable is the
fact that the additional factors now enumerated appear to be factors applicable to all
the complaints investigated by the institution of the Public Protector. For that reason,
it cannot be said to be “special”.
27. On 20 June 2019, Minister Gordhan responded to the section 7(9) notice. He
again called on the Public Protector to furnish full particulars of the “special
circumstances” she relied upon when she exercised her discretion in this case. The
Public Protector again failed to respond.
28. On 5 July 2019 the Public Protector released her report. Despite the requests
to fully respond, the report again merely listed the generic lists of factors.
29. Counsel for the Public Protector submits that the Public Protector is at liberty
to determine whether or not to investigate a complaint irrespective of the age of the
complaint. He submits that since the greater majority of complaints are lodged by
laypersons, the period between the layperson becoming aware of the information and
the occurrence of the incident “will never perfectly fit the two year time limits”.
30. There is no merit in this submission. The Public Protector’s understanding and
interpretation of section 6(9) seems to override the intent of the legislator. This cannot

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be the correct approach to a legislative provision in which the intent of the legislator is
patently clear: The investigative powers of the Public Protector are limited to
complaints referred within two years from the occurrence of the incident or the matter
concerned, except if there are special circumstances present.
31. The Public Protector is supported by the EFF regarding the submission that
the Public Protector acted within the ambit of section 6(9) when she received and
investigated the complaints despite the age thereof.
32. The EFF seeks to bolster their argument by making reference to the fact that,
when Minister Gordhan testified about the same events before the Zondo and Nugent
Commissions, no similar objection was raised to his evidence in that regard. The EFF’s
reasoning, however, fails to appreciate the fact that the Public Protector operates
within the provisions of a specific Act, the Public Protector Act, and that her conduct
must be assessed in terms of the provisions thereof. Commissions such as the Zondo
and Nugent Commissions, are governed by their own terms of reference. The
jurisdictional parameters of the different fora can therefore not be equated.
33. The EFF further submits that it is in the public interest to determine the
lawfulness of the unit. This is a misinterpretation of the provisions of section 6(9). The
mandate of the Public Protector is founded on the basis of public interest: The Public
Protector investigates all complaints in the public interest. Despite this broad-based
mandate, the legislator has nonetheless deemed it fit to circumscribe the Public
Protector’s jurisdiction in a prescribed set of circumstances. It would therefore be
stretching the argument to put up “public interest” as a special circumstance justifying
the Public Protector’s decision. The submissions by the EFF are therefore not
sustainable.
34. In conclusion, the Public Protector’s decision to conduct the investigation was
unlawful because there were no special circumstances present. The review should
succeed in its entirety on this ground alone. However, if we are wrong in this regard
and the Public Protector had the necessary jurisdiction to investigate the complaints,
we will nonetheless consider the review.

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MR GORDHAN’S APPLICATION
35. Minister Gordhan was first advised of the complaints lodged against him on 8
April 2019 when a subpoena was hand-delivered to the offices of his legal
representatives. He was directed to submit an affidavit in terms of the Public Protector
Act on 23 April 2019. The subpoena detailed the following complaints:
“[7.1.1] During your tenure as the then Commissioner of SARS, you, Mr
Pravin Gordhan, MP (Mr Gordhan) established an intelligence unit
in violation of South African Intelligence Prescripts. The
establishment and existence of the intelligence unit was confirmed
by a SARS investigation report compiled by Advocate Sikhakhane;
[7.1.2] SARS violated section 209 of the Constitution which confers the
powers and authority to establish any intelligence service, only on
the President as head of the national executive and does so only in
terms of the national legislation (sic);
[7.1.3] SARS further violated section 41(1)(a) of the Constitution by not
respecting the constitutional status, power and functions of the
National Intelligence Agency;
[7.1.4] SARS irregularly procured intelligence equipment, which the
intelligence unit utilised for intelligence gathering;
[7.1.5] SARS failed to follow proper procurement processes in appointing
employees who worked for the intelligence unit;
[7.1.6] The SARS Intelligence unit irregularly bugged the offices of the
National Prosecuting Authority (NPA) and the Directorate of Special
Investigations (DSO);
[7.1.7] SARS, based on an instruction from Mr Gordhan, as the former
Minister of Finance, in 2012, pursued the tax affairs of the current

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Economic Freedom Fighters President, Mr Julius Malema, MP,
without a legal basis;
[7.1.8] Mr Pillay was appointed to the position of Deputy SARS
Commissioner and subsequently as SARS Commissioner whilst he
did not possess the necessary qualifications for the positions;
[7.1.9] SARS failed to follow correct procurement procedures in the
appointed of Accenture;
[7.1.10] SARS irregularly extended the SARS IT tender for 12 years resulting
in fruitless and wasteful expenditure that has escalated to R8 billion
to date; and
[7.1.11] SARS purchased an IT company by the name INTERFRONT at an
amount of R72 million whilst the company was worth R2 million at
the time of purchase.
[8] Mr Shivambu further alleged that you violated the Executive Ethics Code
by deliberately misleading the National Assembly in failing to disclose
that you had met with a member of the Gupta family since taking office.”
36. We have already referred to the letter dated 16 April 2019 in which Minister
Gordhan’s legal representatives addressed a letter to the Public Protector requesting
to disclose the “special circumstances” upon which she relied as justification to
investigate the complaints. In this letter, the legal representatives also raised the issue
of the short time (20 business days) afforded to Minister Gordhan within which he had
to file his response to the section 7(9) notice and requested the Public Protector for an
extension.
37. On 17 April 2019 Minister Gordhan’s legal representatives directed a letter to
the Acting Commissioner of SARS (Mr Mark Kingon) requesting copies of documents
and access to persons that could assist in responding to the allegations investigated
by the Public Protector. On 18 April 2019 Mr Kingon replied that he was not in a

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position to accede to Minister Gordhan’s request at that stage because he operated
within a legal framework and he needed legal certainty whether he was permitted to
disclose the information.
38. The request for an extension was repeated on 22 April 2019. Instead of
responding directly to Minister Gordhan’s legal representatives regarding the request
for an extension, the Public Protector released a media statement on 23 April 2019 in
which Minister Gordhan was granted an extension, but only until 3 May 2019.
39. On 2 May 2019 Minister Gordhan’s legal representatives again sought clarity
on when the Public Protector will respond to the substantive issues raised in the letter
of 16 April 2019, particularly with reference to what constituted special circumstances
entitling the Public Protector to investigate complaints more than ten years after the
events in issue.
40. The office of the Public Protector responded by stating that a response had
already been provided to Minister Gordhan as she preferred to communicate directly
with him due to “leakages to the media”. Minister Gordan’s legal adviser informed the
Public Protector that, notwithstanding her preference, all correspondence should be
directed to the office of the legal representatives of Minister Gordhan.
41. In her letter dated 24 April 2019, the Public Protector (as already pointed out)
responded that special circumstances were present as she was in possession of
“reliable information” that the surveillance equipment that was acquired at
astronomical costs, was still in use. She further pointed out that the matter was of
special public interest as public funds were being used for illegal purposes.
42. On 17 May 2019 Minister Gordhan submitted an affidavit to the Public Protector
in compliance with the subpoena.
43. On 3 June 2019 the Public Protector announced via a video posted on
YouTube6 that Minister Gordhan would be served with a section 7(9) notice. This video
6 YouTube is an online video sharing platform.

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was posted on a public platform before giving any notice to Minister Gordhan or his
attorneys.
44. The section 7(9) notice informed Minister Gordhan that the Public Protector
intended to split the initial 12 complaints into two reports. The notice further afforded
Minister Gordhan 10 working days to comment on the adverse findings that the Public
Protector intended to make against him.
45. Minister Gordhan’s legal representative sought an extension of the deadline to
respond to the serious issues under investigation in order to afford him an opportunity
to properly consider his response thereto. An extension was granted and Minister
Gordhan responded to the section 7(9) notice on 21 June 2019. In his response
Minister Gordhan took issue with the fact that neither he nor his legal representatives
was furnished with the notice and submitted that he was not only entitled to be
informed timeously of any developments in respect of the investigations as he was the
subject of an investigation but, that he had the right not to be informed by the media
of notices served on him.
46. On 5 July 2019 - 10 days after receipt of Minister Gordhan’s affidavit - the Public
Protector released the Report to the media in which various adverse findings against
Minister Gordhan were made. The Report was released before either Minister
Gordhan or his legal representatives was furnished with the Report. The Report dealt
with six of the fourteen issues raised in the two complaints. The remainder of the
complaints were deferred for further investigation.
ALLEGATIONS AGAINST MINISTER GORDHAN
47. The accusations levelled against Minister Gordhan can briefly be divided into
three categories:
(i) The first is the accusations about the establishment of an unlawful
intelligence unit at SARS in violation of South African intelligence
prescripts at the time when Minister Gordhan was the Commissioner of

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SARS; the procurement of intelligence equipment by the unit; SARS’s
recruitment of employees of the unit; and the operations of the unit.
(ii) The accusation that Minster Gordhan violated the Executive Ethics Code
by deliberately misleading the National Assembly by failing to disclose
that a member of the controversial Gupta family was present at a
meeting between Minister Gordhan and a certain Mr Ambani in 2010;
and,
(iii) The accusation that Mr Pillay was appointed as the SARS Deputy
Commissioner when he was not qualified for that position.7
48. Although the Public Protector also found that SARS had failed to follow correct
procurement procedures when it procured intelligence equipment for gathering
intelligence and that the unit carried out irregular and unlawful operations, Minister
Gordhan is not directly implicated in the Report in respect of these findings. These
findings will be discussed as part of the Pillay application.
49. In her remedial action proposed in respect of Mr Gordhan,8 the Public Protector
made the following orders:
i. The President to take appropriate disciplinary action against Minister
Gordhan for his violation of the Constitution and the Executive Ethics
Code within 30 days of issuing the Report.
ii. The Speaker to, within 14 days of receipt of the Report, refer Minister
Gordhan’s violation of the Code of Ethical Conduct and Disclosure of
Member’s Interest for Assembly and Permanent Council Members, to
the Joint Committee on Ethics and Member’s Interest, for consideration
in terms of the provisions of paragraph 10 of the Parliament Code of
Ethics.
7 This aspect of the Report is dealt with in the Pillay application.
8 Ad paras [8] and [9] of the Report of the Public Protector.

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iii. The Minister of State Security, acting in line with the Intelligence
Services Amendment Act,9 to, within 90 days of the issuing of the Report,
implement in totality the Office of the Inspector General of Intelligence’s
report (“the OIGI report”) dated 31 October 2014 and that all intelligence
equipment utilised by SARS’s intelligence unit, be returned, audited and
placed into the custody of the State Security Agency within 30 days of
the Report.
iv. The NDPP to finalise the various criminal proceedings instituted against
implicated former SARS officials.
v. The Commissioner to, within 60 days, investigate criminal conduct of
Minister Gordhan, Mr 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,10 including Mr
Magashula’s conduct of lying under oath.
vi. The abovementioned individuals and entities to submit plans for the
implementation of the orders for the Public Protector’s approval and then
to implement those plans within tight timelines.
50. In respect of Minister Gordhan, the following three issues will be considered:
Firstly, whether Minister Gordhan violated the Ethics Code by deliberately misleading
parliament in respect of the meeting he attended with Mr Ambani where a member of
the Gupta family was present. Secondly, whether Minister Gordhan was involved in
the recruitment of staff for the unit. Thirdly, the lawfulness of the establishment of the
unit, including whether section 209 of the Constitution was violated. The complaint
about the recruitment of staff overlaps with one of the findings against Mr Pillay and
will therefore be dealt with as part of the Pillay application.
9 Act 65 of 2002.
10 Act 39 of 1994.

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CONTRAVENTION OF THE EXECUTIVE ETHICS CODE
51. The Executive Ethics Code was promulgated by Presidential Proclamation
R41 of 2000 in terms of Section 2(1) of the Executive Members Ethics Act.11
Paragraph 2.3(a) of the Code reads as follows:
“Members of the Executive may not wilfully mislead the legislature to which
they are accountable.”
52. The Public Protector found that Minister Gordhan had violated the Executive
Ethics Code (“the Code”) by deliberately misleading the National Assembly in 2016 by
not being able to remember a 2010 meeting with a certain Mr Ambani at which a
member of the Gupta family was said to have been present. This incident occurred in
response to a written question where Minister Gordhan described his contacts with the
Gupta family. He responded as follows:
“I have not attended any meeting with the Gupta family or anyone else at
their Saxonwold Estate. I have encountered one or more members of his
family at public events on a few occasions e.g a cricket match. I have met
one of the Gupta brothers at Mahlamba Ndlovu around 2009/2010 during
which brief discussion on small business finance took place.”
53. Minister Gordhan thereafter testified before the Zondo Commission in 2018.
He stated that he attended a meeting in June 2010 with an affluent businessman, Mr
Ambani of the Reliance Group. He testified that he had been advised by his former
Chief of Staff, Mr Dondo Mogajane, in preparation for the Zondo Commission, that a
member of the Gupta family had been present at the Ambani meeting. He stated that
he had no independent recollection regarding the presence of a member of the Gupta
family at the meeting, but there might have been one, and he had accordingly decided
of his own accord to make a full disclosure after being reminded by Mr Mogajane of
the meeting held during June 2010.
11 Act 82 of 1996.

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54. The Public Protector found that Minister Gordhan’s inability to remember
“does not seem like a bona fide mistake” on the following basis:
“7.1.2 Mr Gordhan conceded to not having disclosed that he had actually
met a member of the Gupta family and an associate of the family in
2010.
7.1.3 He contended that at the time of his response to the Parliamentary
question he could not recall as he had forgotten about the meeting
at which Mr Ajay Gupta was present.
7.1.4 According to his affidavit to the State of Capture Commission
inquiry (the Zondo Commission), that it was only after being
reminded by Mr Dondo Mogajane who at the time was his Chief of
Staff. I find this rather implausible when one considers the
prominence of the subject of State Capture in South Africa.
7.1.5 I therefore find that his conduct in this regard is in violation of
paragraph 2 of the Executive Ethics Code and accordingly amounts
to conduct that is inconsistent with his office as a member of
Cabinet as contemplated by Section 96 of the Constitution.”
55. The Public Protector in her answering affidavit further took issue with Minister
Gordhan’s explanation that he could not independently remember meeting with a
member of the Gupta family and argued that “Mr Gordhan’s comments were evidence
of the formation and implementation of a scheme to downplay and obfuscate the
extent of his dealings with the Guptas and to mislead Parliament in regard thereto”.
56. Minister Gordhan explains that his meeting was with Mr Ambani and not Mr
Gupta. The notoriety of the Guptas in 2010 had not yet risen to a level where he would
have had to take particular note of a member of the Gupta family presence at the
Ambani meeting. He had disclosed his other casual meetings with the Guptas
including a meeting where one of the Gupta’s was introduced to him by former
President Zuma at the Presidential Guest House, in Pretoria.

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57. Minister Gordhan’s testimony that he did not recall and still does not recall the
presence of a member of the Gupta family in response to a parliamentary question put
to him during 2016, was not contradicted by any other evidence. In the absence of any
countervailing evidence to the account given by Minister Gordhan regarding the
Ambani meeting to Parliament and to the Zondo Commission, there is no basis for the
Public Protector reaching a conclusion that he deliberately misled Parliament. Mr
Gordhan’s state of recollection at the Zondo Commission was not different save for
the reminder by his former Chief of Staff. The Public Protector’s conclusion is not
based on any rational assessment of the evidence presented and is irrational.
58. But what compounds the Public Protector’s misdirection is that she then
makes a complete about–turn by departing from her report and now argues that an
“inadvertent or mistaken misrepresentation violates the Executive Ethics Code”. In
doing so she then shifts her focus to the judgment of Potterill J, who presided over
Part A of this application. In her judgment, the judge briefly dealt with interpretation of
the wording contained in section 2.3(a) of the Executive Ethics Code and made the
following comments in respect of the wording in paragraph 2.3(a) of the Executive
Ethics Code:
“[22] Paragraph 2.3(a) of the Executive Ethics Code reads as follows:
“Members of the Executive may not … wilfully mislead the Legislature to which
they are accountable.”
The review grounds set up by Gordhan is that he did not wilfully mislead the
National Assembly. The PP found that Gordhan dishonestly concealed the
fact that at the “Ambani meeting” there was a Gupta present. Gordhan sets
out that until today he cannot recall that a Gupta was present, but his Chief of
Staff informed him in preparation for his evidence at the Zondo Commission
that there was a Gupta present at that meeting; he without an independent
recollection thereof disclosed this fact to the Commission.
[23] The EFF submitted that it matters not that Gordhan may not wilfully have
misled the Legislature, an innocent mistake is sufficient. This is of course
contra the wording of paragraph 2.3(a) of the Code specifying that it must be
done wilfully.

20
[24] On these facts Gordhan has established prima facie right.”
59. Potterill J, with reference to the express wording employed in the Executive
Ethics Code thus held the view that what is required is that the misleading statement
must have been done “wilfully” and that “an innocent mistake” will therefore not fall
short of the provisions of section 2.3(a) of the Executive Ethics Code.
60. In her affidavit in the proceedings before us, the Public Protector strongly
disagrees with the interpretation adopted by Potterill J namely that wilfulness is a
requirement for a transgression of the Executive Ethics Code. But, instead of merely
recording her disagreement with the court’s interpretation, she launched into a
scathing, unwarranted and personal attack on the integrity of the learned Judge. She
even goes as far as to accuse the learned Judge of “a gross misinterpretation of the
… Code” and of “deliberately omitting” words from the Code. She says this in her
affidavit:
“The High Court further committed a gross misinterpretation of the applicable
Executive Ethics Code. Section 2.3 expressly states that Members may not-
(a) Deliberately or Inadvertently mislead the President, or the Premier or as
the case may be; the legislature;” Inexplicably the High Court close to rewrite
the said provisions of the Code and adopted Mr Gordhan’s view that Code
only prohibits “wilfully” misleading “the Legislature to which they are
accountable”. The High Court did so by deliberately omitting the words
“inadvertently mislead” from the actual code. The High Court states on para
22 of the judgment that “the review grounds set up by Mr Gordhan is that he
did not wilfully mislead the National Assembly. I found that Mr Gordhan
dishonestly concealed the fact that at the “Ambani meeting” there was a Gupta
present. As if to highlight its grossly misplaced interpretation of the Code, the
Court went on to state on paras 23 and 24 the following:
[23] The EFF submitted that it matters not that Gordhan may not
wilfully have misled the Legislature, an innocent mistake is sufficient.

21
This is of course contra the wording of paragraph 2.3(a) of the Code
specifying that it must be done wilfully.”
61. Apart from the fact that the personal attack on the learned Judge is shockingly
inappropriate and unwarranted, the Public Protector’s reading and interpretation of
paragraph 2.3(a) of the Executive Ethics Code is wrong in law: The Code prohibits
members of the Executive from “wilfully” misleading the legislature. The wording of
the Code is clear and does not contain a provision that an “innocent” mistake
constitutes a contravention of the Executive Ethics Code. To claim that Potterill J
“deliberately omitted the words ‘inadvertently mislead’” from the actual Code, is simply
astonishing. Besides being a Public Protector, Adv Mkhwebane is officer of this court
owes it a duty to treat the Court with the necessary decorum. She not only committed
an error of law regarding the Code but was also contemptuous of the Court and Judge
Potteril personally. What makes this reprehensible conduct worse is that the remarks
by Adv Mkhwebane were made under oath, when she ought to have known about the
falsity thereof. This clearly held the possibility of misleading this court. This is conduct
unbecoming of an advocate and officer of this court. She owes Judge Potteril an
apology. The Registrar of this Division is requested to send a copy of this judgment to
the Legal Practice Council for consideration.
62. In the matter of The President of the Republic of South Africa
v The Public Protector (The Information Regulator Amicus Curiae)12 the full bench of
this division similarly criticized the Public Protector’s flawed understanding of the
contents of section 2.3(a) of the Executive Ethics Code:
"[207] Of similar concern is her confusion over the proper version of the
Executive Code. She has not explained how she committed this error. Her
conduct in this regard goes further than simply having reference to two
different versions of that Code. The legal test for a violation of the Code by
misleading the National Assembly was fundamentally different in the two
versions. Instead of appreciating the difference between the "willful"
misleading of the National Assembly, and the "inadvertent" misleading of it,
12 2020 JDR 0406 (GP).

22
she asserted that if she had made an error at all it was an immaterial error of
form over substance. This submission shows a flawed conceptual grasp of the
issues with which she was dealing.
[208] Like any official required to make pronouncements to the public, the
Public Protector must surely strive to be as clear as possible in her findings.
Her reasoning on the disclosure issue was muddled and difficult to
understand. It failed to explain to the public why she had found that the
President of the country had wilfully breached the duty of transparency
established by the Code. Indeed, her conclusion inexplicably found that at the
same time the President had also inadvertently misled Parliament, sowing
further confusion."
63. The Public Protector also bemoans the fact that Minister Gordhan has
launched an attack on her integrity which she labels as “scandalous” and made in an
attempt to support a “political crusade” against her to mobilise “political support” for
her removal from her office. Yet she has no qualm launching a blistering and personal
attack on a Judge of this division.
64. To summarise: The evidence presented to the Public Protector does not
support a conclusion that Minister Gordhan wilfully contravened the Code. A
conclusion to the contrary is incorrect and irrational.
THE UNIT
65. The unit was established in 2007. The findings of the Public Protector in
respect of the establishment of the unit should therefore be viewed against the
common cause fact that Minister Gordhan was the Commissioner of SARS only until
May 2009 whereafter he was appointed as the Minister of Finance and later the
Minister of Cooperative Governance and Traditional Affairs. His involvement in SARS
and by implication the unit, therefore came to an end during May 2009. The unit was
headed by Mr Pillay as General Manager: Enforcement and Risk Division. Mr Pillay’s
role in the operation of the unit is discussed elsewhere in the judgment.

23
66. The sordid saga about the unit has been unfolding in the public domain over
the course of many years. It paints a picture of malfeasance and impropriety, not only
in respect of the establishment of the unit, but more alarming, about the alleged
recalcitrant and murky activities of this unit to such an extent that this unit was labelled
in the press as a “rogue unit”.
67. The rogue unit narrative first raised its head two weeks after Mr Tom Moyane
took office as SARS Commissioner. In a newspaper report published on 12 October
2014 in the Sunday Times, it was claimed that a “rogue unit” operated within SARS.
Two years later and numerous similar newspaper articles, the Sunday Times
unconditionally withdrew its allegations regarding an alleged “rogue unit” operating
within SARS and tendered an apology to SARS. By that time the damage had
unfortunately been done and those employees of SARS that have been implicated in
the Sunday Times reports have already faced disastrous consequences.13
68. The rogue unit narrative suggested that Minister Gordhan in particular had
actively and knowing participated in the establishment of a unit in violation of South
African Intelligence prescripts. There can be no doubt that, should these allegations
be true, the implications thereof for Minister Gordhan (personally and politically) and
the trust that the wider public has in a public institution such as SARS, would be
profoundly damaging.
69. The principal finding of the Public Protector in respect of the unit was firstly,
that Minister Gordhan, during his tenure as the Commissioner of SARS established
an “intelligence unit” in violation of the South African Intelligence prescripts and,
secondly, that the establishment of the unit was “improper and in violation of section
209 of the Constitution and therefore amounted to maladministration as envisaged in
section 182(1) of the Constitution and an abuse of power as envisaged in section
6(4)(ii)14 of the Public Protector Act”.
13 Final Report of the Commission of Inquiry into Tax Administration and Governance by the South
African Revenue Service. Date 11 December 2018 ad para [2].
14 The relevant part of this section reads as follows: “(4) The Public Protector shall, be competent-
(a) to investigate, on his or her own initiative or on receipt of a complaint, any alleged-
…

24
70. As will be pointed out, this finding is not supported by the established facts
that were placed before the Public Protector, and is fundamentally wrong in law.
Background leading up to the establishment of the unit
71. SARS is established in terms of the South African Revenue Service Act15
(“the SARS Act”). Although SARS is established as an organ of state within the public
administration, SARS as an institution falls outside of the public service. SARS is the
sole administrator and revenue collecting agency responsible for investigating and
enforcing compliance with tax and customs legislation.
72. Section 3 of the SARS Act lists as its objectives “the efficient and effective
(a) collection of revenue; and (b) control over the import, export, manufacture,
movement, storage or use of certain goods”, including those subject to customs and
excise duty. Section 4 sets out the functions of SARS and provides that SARS “must
secure the efficient and effective, and widest possible, enforcement” of all tax laws.
SARS is not an intelligence service nor a law enforcement agency, but a revenue and
custom agency by law.
73. In terms of section 5(1) of the SARS Act, SARS may do all that is necessary
to perform its functions properly including engaging in any activity whether alone or
together with other organisations in the Republic or elsewhere, to promote proper,
efficient and effective tax administration, including customs and excise duty
administration,16 and may do anything that is incidental to the exercise of any of its
powers.17 Schedule 1 of the SARS Act lists the various laws which are to be
administered by SARS. These laws were the operative laws at the time when the unit
was formed in 2007. In addition to these laws, SARS also had to consider other
legislation such as the National Strategic Intelligence Act18 (“the NSI Act”). As will be
(ii) abuse or unjustifiable exercise of power or unfair, capricious, discourteous or other
improper conduct or undue delay by a person performing a public function;”
15 Act 34 of 1997.
16 Section 5(1)(j) of the SARS Act.
17 Section 5(1)(k) of the SARS Act.
18 Act 39 of 1994.

25
pointed out herein below, there is no provision contained in the NSI Act prohibiting
SARS to conduct investigations in terms of its own powers and functions in a discreet
manner.
74. In September 2002, SARS and the National Intelligence Agency (“the NIA”)
concluded a Memorandum of Understanding agreeing to cooperate to enhance the
fulfilment of their respective mandates. The different responsibilities of the NIA and
SARS were recognised: The NIA is primarily responsible for the gathering, correlation,
and analysis of domestic intelligence, fulfilling the national counter-intelligence
responsibility and gathering departmental intelligence upon request, whereas SARS
is primarily responsible to administer and enforce tax and customs laws for the
purpose of the efficient and effective collection of revenue, the facilitation of trade and
protection of the economy.
75. In 2007, during his tenure as Commissioner of SARS, Minister Gordhan
authorised the establishment of the unit. At the time the unit was also known at various
times as the “Special Projects Unit” (“SPU”), the “National Research Group” (“NRG”)
and the “High Risk Investigations Unit” (“HRIU”). The manager of the unit, Mr Van
Loggerenberg, reported to Mr Pillay in his capacity as the General Manager:
Enforcement and Risk. Mr Pillay, in turn, reported to Minister Gordhan until May 2009
when Minister Gordhan was appointed the Minister of Finance.
76. Minister Gordhan explains in his affidavit that the unit was established
pursuant to an express commitment of government to crack down on crime generally
and more in particular on organised crime and to give effect to former President Mbeki
State of the Nation Address of 9 February 2007 during which he stated that
government would, amongst other things:
“… start the process of further modernising the systems of the South African
Revenue Services (sic), especially in respect of border control, and improve the
work of the inter-departmental co-ordinating structures in this regard; intensify
intelligence work with regard to organised crime, building on the successes that
have been achieved in the last few months in dealing with cash-in-transit heists,
drug- trafficking and poaching of game and abalone.”

26
77. SARS thus had to enhance its intelligence-gathering capacity to combat
organised tax crime and illicit trade. To this end the unit was set up within SARS’
Enforcement Division.
78. Minister Gordhan explains that SARS always had its own investigation and
enforcement units and that these units have been engaged in a wide range of
investigations, including criminal investigations, with tax implications such as
combatting the importation, exploitation and manufacturing of drugs, the illegal
harvesting of abalone and its supply, the illegal importation of second-hand vehicles,
the importation of counterfeit goods and the smuggling of cigarettes and other goods.
79. The unit was responsible for cracking down on organised tax crime and tax
evasion and did so in collaboration with various government departments and other
law enforcement agencies. Minister Gordhan explains that the law enabled and indeed
required SARS to establish a unit to investigate economic crimes with tax implications.
80. Initially, it was contemplated that the unit was to be housed within the NIA. To
this end SARS and the NIA had discussions with a view to developing a dedicated
intelligence capacity within the NIA to support SARS in the investigation of economic
crimes with tax implications. Minister Gordhan explains that the initial idea was that
SARS would recruit and train members of the unit to conduct tax and customs
investigations and thereafter transfer them to a ring-fenced unit housed in the NIA
dedicated to the support of tax objectives of SARS. The approval of the Minister of
Finance was required because the arrangement would have entailed the transfer of
funds from SARS to the NIA.
81. To this end, Minister Gordhan and Mr Pillay sent a memorandum to the then
Minister of Finance, Mr Trevor Manuel, dated 2 February 2007, to obtain ministerial
approval for the establishment and funding of the unit within the NIA (“the first
memorandum”). On 22 February 2007 Minister Manuel approved the funding for the
establishment of a unit within the NIA. As already stated, this approval was necessary
because funds had to be transferred from SARS to the NIA to fund the unit within the
NIA. In this memorandum it is clearly recorded that SARS did not have the capability,

27
including a legislative mandate, to collect tactical intelligence which invariably entailed
penetrating and intercepting organised criminal syndicates. For that reason, there
were at the time discussions taking place with the NIA to supplement SARS’
intelligence capability. At the time the NIA was willing to create a ring-fenced capability
provided that funds were made available to cover personnel costs and was willing to
formalise this arrangement into a Memorandum of Understanding.
82. On 13 February 2007, Mr Magashula, who at that time was the Chief Officer:
Corporate Services, approved a proposal that SARS hire employees for a dedicated
unit to focus on illicit trade and to take decisive steps to minimize, inter alia, the
importation, exportation and manufacturing of drugs; illegal harvesting of abalone and
its supply; illegal importation of second hand vehicles; importation of counterfeit goods
and smuggling of cigarettes (“the second memorandum”).
83. SARS also obtained two legal opinions on the lawfulness of the establishment
of the unit, in January 2007 and May 2007. However, when the NIA lost its appetite
for the establishment of such a unit, Mr Van Loggerenberg, (at that stage employed at
SARS Enforcement Division) proposed to Mr Pillay that they establish a unit with
specialised skills within its own legislative mandate within its existing Enforcement
Division in support of its strategic objective of combatting economic crime with a tax
and customs dimension. In an internal memorandum dated 25 July 2007, Mr Van
Loggerenberg explains the need for this unit in order to give effect to the statement of
President Mbeki in his State of the Nation address to, inter alia, “intensify intelligence
work with regard to organised crime, building on the successes that have been
achieved in the last few months in dealing with cash-in-transit heists, drug trafficking
and poaching of game and abalone…” Mr Van Loggerenberg stated that the document
proposed a mandate for those functions in support of SARS’ strategic objectives.
84. It was after the above-mentioned proposal from Mr Van Loggerenberg to Mr
Pillay, that the unit was established within SARS.
The legislative framework

28
85. We have already referred to the legislative framework within which SARS was
established and the need that existed at the time for SARS to have an internal
investigative capacity to fulfil its objectives. To achieve these objectives section 4(1)(a)
of the SARS Act provides that SARS must ensure that the national legislation listed in
Schedule 1 be enforced. At the time when the unit was established in 2007, the
national legislation listed in Schedule 1 of the SARS Act included: (i) The Customs
and Excise Act.19 (ii) The Income Tax Act20 (before its amendment by the Tax
Administration Act); and (iii) The Value Added Tax Act21 (before its amendment by the
Tax Administration Act). These tax laws vested SARS with wide powers to investigate
tax matters including the investigation of crimes with tax implications.22
86. On behalf of Minister Gordhan it was submitted that, given the wide powers
vested in SARS by this legislative framework to enforce and ensure compliance with
the applicable tax, customs and excise laws, SARS’ need for internal investigative
capabilities was clear. It is further submitted that the unit was therefore lawfully
established and that there was no basis for the Public Protector to have concluded
otherwise. The applicants contend that the Public Protector arrived at her conclusions
by inter alia relying on unsubstantiated allegations and by blatantly ignoring the mass
of evidence already at her disposal. It is submitted that the Report is therefore irrational
and a product of a procedurally unfair and flawed process.
87. The author, Hoexter,23 states that rationality means that a decision must be
supported by the evidence and information before it. It must also objectively be
capable of furthering the purpose for which the power was given and for which the
19 Act 91 of 1964.
20 Act 58 of 1962.
21 Act 89 of 1991.
22 In terms of the Customs Act, for example, SARS is granted the internal investigative capability to
prepare for and perform the types of operations for which the SARS unit was established. In terms of
section 4A of the Customs Act, customs officials may, under certain circumstances, enter any premises
without a warrant for the purposes of enforcing the objects of the Customs Act. Such officers may
conduct an inspection, examination, enquiry or search of the premises. Certain officials also have the
power to carry out an arrest for purposes of enforcing this Act. Wide powers are also conferred upon
SARS in terms of section 5(1)(j) of the SARS Act to “engage in any activity, whether alone or together
with any other organisations in the Republic or elsewhere, to promote proper, efficient and effective tax
administration, including customs and excise duty administration.”
23 Cora Hoexter, Administrative Law in South Africa (2011).

29
decision was taken.24 In Democratic Alliance v President of the Republic of South
Africa25 the Constitutional Court held that:
"[36] The conclusion that the process must also be rational in that it must be
rationally related to the achievement of the purpose for which the power is
conferred, is inescapable and an inevitable consequence of the understanding
that rationality review is an evaluation of the relationship between means and
ends. The means for achieving the purpose for which the power was conferred
must include everything that is done to achieve the purpose. Not only the
decision employed to achieve the purpose, but also everything done in the
process of taking that decision, constitutes means towards the attainment of
the purpose for which the power was conferred.”
88. In determining whether the Public Protector’s findings were rational, it is
therefore important to ascertain what process she followed in coming to the findings
and what evidence was available to her when she made her findings. The reports and
evidence are discussed hereunder.
The Sikhakhane Report
89. In the executive summary of the Report,26 it is recorded that Minister Gordhan,
during his tenure as the former Commissioner of SARS, established an intelligence
unit in violation of South African prescripts. Reliance for this conclusion is specifically
made with reference to the fact that that the “intelligence unit was confirmed by a
SARS investigation report compiled by Advocate Sikhakhane.”27
90. The panel in the Sikhakhane investigation concluded that the unit was
established unlawfully primarily on the basis that it was in breach of section 3 of the
NSI Act. Section 3(1) of this act reads as follows (before its amendment in 2013 and
before the unit was established):
24 At page 340.
25 [2012] ZACC 24; 2013 (1) SA 248 (CC); 2012 (12) BCLR 1 297 (CC).
26 Executive summary: Ad paragraph (dd) of the Report of the Public Protector.
27 Dated 5 November 2014.

30
“If any law expressly or by implication requires any department of State, other
than (the NIA) or (SASS), to perform any function with regard to the security
of the Republic or the combatting of any threat to the security of the Republic,
such law shall be deemed to empower such department to gather
departmental intelligence, and to evaluate, correlate and interpret such
intelligence for the purpose of discharging such function; provided that such
department of State-
(a) …
(b) …
shall not gather departmental intelligence within the Republic in a covert
manner …”
91. From a reading of this section, we are not persuaded that the unit contravened
the provisions of the NSI Act for the following reasons: Firstly, section 3(1) did not
impose a general prohibition on the gathering of intelligence. The prohibition only
applied to those departments of the State that were required by law to perform
functions “with regard to the security of the Republic or the combatting of any threat to
the security of the Republic”. SARS was not such a department and was not required
by law to perform any functions with regard to state security. SARS was therefore not
subject to the prohibition in section 3(1). Secondly, section 3(1) did not prohibit all
covert intelligence gathering. It only prohibited the gathering of “departmental
intelligence” in a covert manner. “Departmental intelligence” is defined in section 1 of
the NSI Act as “intelligence about any threat or potential threat to the national security
and stability of the Republic”. The unit housed in SARS was never engaged in the
gathering of intelligence of this kind and its activities fell well beyond the scope of the
prohibition contained in section 3(1) of the NSI because it was not in the business of
gathering intelligence about threats or potential threats to the national security and
stability of the Republic.
92. The findings identified in the Sikhakhane report and the panel’s interpretation
of section 3(1) of the NSI Act has since its publication been widely repudiated. Judge
Nugent, who chaired the Commission of Enquiry into Tax Administration and
Governance by SARS (“the Nugent Commission”) in 2018 criticized the view of the

31
Sikhakhane report (namely that the unit was considered to be unlawful) and stated as
follows:
“The so-called ‘Rogue Unit’
[7] The unit concerned was a successor to a unit that had been established in
about 2008 to counter the illicit trade in commodities such as liquor, cigarettes,
and counterfeit goods. It started in about 2007 when a proposal was
considered for funding staff within the National Intelligence Agency to address
organised crime and the illicit economy. . . .
[8] Mr Pillay and Mr Gordhan, . . ., addressed a memorandum to the Minister
of Finance, requesting approval ‘to fund a special capability within SARS and
law enforcement with the necessary information to address the illicit economy.
Approval was granted by the Minister but negotiations with the NIA came to
nought and a unit within SARS was established instead. . .
[9] Why such a unit was considered unlawful is not clear to me. While the
National Strategic Intelligence Act prohibits the covert gathering of certain
intelligence, that applies to intelligence concerning threats to the safety of the
state, which hardly applies to intelligence relevant to collecting tax . . . I see
no reason why SARS was and is not entitled to establish and operate a unit
to gather intelligence on the illicit trades, even covertly, within limits.”
93. In this regard Judge Nugent referred to the legal opinion furnished by Adv
Trengove SC and Adv Nxumalo on 1 September 2015 to the former Commissioner of
SARS in response to the Sikhakhane report.28 The opinion, inter alia, advised SARS,
that it:
i. May keep people under surveillance in the public domain but not in
private.
28 This legal opinion was also considered by the Public Protector. See the Public Protectors’ Report
ad para [4.4.4.28].

32
ii. May follow a person or vehicle in the public domain but not in private.
iii. Probably may place an electronic tracking device on property to trace its
movements.
iv. May watch a person or property . . . but only in the public domain.
v. May take photographs or video of people or property in the public domain
but not in private.
vi. May not listen to or record private conversations.
vii. May not electronically record third party conversations by using listening
devices.
viii. May record conversations between SARS officials and third parties.
ix. May accept information from informers.
x. May accept information from a person even if it knows that the information
was unlawfully obtained.
94. Judge Nugent, with reference to the legal opinion and to the Sikhakhane
report, as well as the SARS Advisory Report chaired by Judge Kroon, 29 concluded as
follows regarding the lawfulness of the establishment of the unit:
“[11] It was said to be unlawful by a panel chaired by Adv Sikhakhane SC,
but I find nothing in its report to persuade me why that was so. Adv
Sikhakhane was asked if he could elaborate but his reply took it no further
than what was said in the report. The SARS Advisory Report chaired by
Judge Kroon, reported to the Minister, and issued a media statement saying
29 In 2015 retired Judge Kroon was appointed to chair an advisory committee to inter alia review events
reported to the media.

33
the unit was unlawful, but in evidence he told the Commission that was not
a conclusion reached independently by the Board, but had been adopted
from the Sikhakhane panel, and he had come to realise it was wrong. Indeed,
he supported the re-establishment of capacity to investigate the illicit trades
which we recommend.”
95. The Public Protector inexplicably ignored the report of the Nugent Commission
in reaching her conclusions. The Public Protector similarly ignored the apology and
retraction of the adoption of the Sikhakhane’s panel’s finding by the SARS Advisory
Board headed by retired Judge Frank Kroon (and also referred to by Justice Nugent
in the excerpt quoted above).
96. In Wingate-Pearse v Commissioner, SARS30 the court was likewise critical of
the view adopted by the Sikhakhane report and commented as follows:
“[28] However, the Commissioner of Inquiry into Tax Administration and
Governance by SARS appointed by President Cyril Ramaphosa and chaired
by retired Judge Nugent (the Commission), made findings in its final report
that support SARS’ stance that Mr Wingate-Pearse’s allegations about the
existence of a rogue unit within the ranks of SARS are without a sound factual
basis. The Commission found inter alia that there was an onslaught upon
those who managed SARS founded upon allegations once peddled by the
Sunday Times to a beguiled public for a year or more, about a “rouge” unit that
was alleged to have existed within SARS; the Sunday Times itself withdrew
its allegations and apologised some two years later; although the
establishment of HRIU was termed unlawful by a panel chaired by
Adv Sikhakhane SC, there was nothing in the report to persuade the
Commission why that was so; and the SARS Advisory Board chaired by
Judge Kroon, reported to the Minister, and issued a media statement, saying
the unit was unlawful, but in evidence he told the Commission that was not a
conclusion reached independently by the Board, but had been adopted from
the Sikhakhane panel, and he had come to realise it was wrong. Indeed, he
30 2019 (6) SA 196 (GJ).

34
supported the re-establishment of capacity to investigate the illicit trades,
which he recommends. In his testimony before the Commission, Judge Kroon
said: ‘Yes, as I have said in my report, my first comment was that the
statement relating to the unlawfulness of the establishment of the unit were
not thought through properly and were (sic) in fact incorrect.”
97. The Sikhakhane report had dire consequences not only for existing activities
at SARS, but also for those officials implicated by the report. Following this report, Mr
Moyane (the then Commissioner of SARS) removed several SARS officials from their
positions. On behalf of Minister Gordhan it was submitted that the report had the effect
of “gutting” SARS’ enforcement capabilities and that it undermined SARS’ capabilities
to ensure tax compliance by prominent politicians and underworld figures and thus
had the result of enabling, in a large part, the capture of SARS.
98. It is clear from a careful reading of the Sikhakhane report that the authors
deviated from their terms of reference and made “factual” findings about allegations
concerning the so-called “rogue unit” without affording any opportunity to those
implicated in the report. The Sikhakhane report also relied upon and entertained
allegations made by the Sunday Times newspaper which the Sunday Times later
repudiated, admitting that it had reported fake news. The Sunday Times newspaper
subsequently apologised to those that it had baselessly pilloried and defamed,
including Minister Gordhan and Mr Pillay.
99. There is no indication from the Report that the Public Protector considered the
public apology published in the Sunday Times regarding its role in postulating what
became the “rogue unit” narrative. In fact, the Public Protector during a public interview
on 31 January 2019, with Advocate Jay Govender of the OIGI, referred to the unit as
the “rogue unit” and as a “monster”. She also publicly expressed her desire to “defeat
the monster”. These comments, unfortunately, do little to allay the applicants’
allegation that the Public Protector is biased or at least subject to a reasonable
perception of bias. We come back to this issue later in the judgment. It is, however,
clear that the Public Protector made no effort to avoid herself being drawn into the
sordid rogue unit narrative, despite the fact that she must have been aware at the time
of the very public denunciation of the narrative by the Sunday Times newspaper.

35
100. The Public Protector’s stubborn reliance on an erroneous interpretation of
section 3(1) of the NSI Act is not explained in the Report. She also does not engage
with any of the legal arguments that are contrary to those expressed in the complaints
and her own. At the very least, it was expected that the Public Protected would critically
engage with views contrary to hers instead of simply repeating the conclusions
reached in the Sikhakhane report in respect of the lawfulness of the unit.
101. But, in addition to the fact that the Sikhakhane report has been widely
discredited, we can likewise find no factual or legal basis upon which it can be
concluded that the establishment of the unit was unlawful. In as far as the Public
Protector has placed any reliance on a contravention of section 3(1) of the NSI Act in
arriving at a finding that the unit was unlawfully established, her conclusions are clearly
wrong in law and therefore irrational and unlawful.
102. The Public Protector also concluded31 that the unit was established in violation
of the NSI Act because it was set up without the involvement of the NIA. This
conclusion is equally wrong in law. The NIA was not legally required to be involved in
the establishment of the unit. The Public Protector’s conclusion in respect of the
apparent lack of involvement of the NIA in the establishment of the unit are therefore
wrong in law, irrational and unlawful.
103. The Public Protector in addition argues in the Report that the establishment of
the unit “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”.
104. This interpretation of section 209 of the Constitution is wrong in law and does
not constitute a legal basis for her conclusion. On a plain reading of section 209 it is
clear that this section does not deal with the establishment of “covert information
gathering units” at all. Section 209(1) reads as follows:
31 Paragraph [7.2.3] of the report of the Public Protector.

36
“Any intelligence service, other than any intelligence division of the defence
force or police service, may be established only by the President, as head of
the national executive, and only in terms of national legislation.”
105. This section regulates the establishment of “intelligence services” and is
confined to the establishment of intelligence services dedicated to the protection of
national security. It was, as already pointed out, never the aim of the unit to protect
national security. The unit, in any event, was never an “intelligence service” in the first
place: The focus of the unit was to investigate tax evasion, illicit trade and organised
crime with tax implications.
106. The Public Protector’s finding32 that Minister Gordhan has acted improperly
and in violation of section 209 of the Constitution and that his conduct consequently
amounted to maladministration in terms of section 182(1) of the Constitution and an
abuse of power in terms of section 6(4)(ii) of the Public Protector Act is therefore not
only wrong in law but irrational and falls to be reviewed and set aside.
The KPMG Report
107. The second report relied upon by the Public Protector is a report compiled by
the audit firm KPMG for the erstwhile SARS Commissioner Mr Moyane. In the Report
the Public Protector relies on the findings made in the KPMG particularly with
reference to the unit’s operations. Reference is made in the Report to the fact that the
KPMG report had found that there was clear evidence that the unit intercepted private
individual communication and that members of the unit were not employed by SARS,
but that they were recruited outside of SARS’ acknowledged systems and processes.
108. Apart from the findings in respect of the activities of the unit, a key finding in
the KPMG report is that Minister Gordhan knew or ought to have known, not only that
the establishment by SARS of an “intelligence unit” was in contravention of the law,
but that the unit was “rogue” in nature.
32 Ad para [7.2.7] of the Report of the Public Protector.

37
109. Although the Public Protector does not explicitly state in the Report that
Minister Gordhan knew, or ought to have known about the “rogue” nature of the unit,
she nonetheless found that SARS had already began operating a unit that had
gathered information “covertly”, even prior to Minister Gordhan’s memorandum to
Minister Manuel, and that Minister Gordhan “should have been aware, and I believe,
was aware that the unit had already started operating”. This finding apparently led the
Public Protector to conclude that 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 unit”.
110. What the Public Protector does not record in the Report is the fact that on 16
September 2017, long before the Public Protector delivered the Report, KPMG had
disavowed its own report and particularly its conclusions regarding the lawfulness of
the unit. Not only did KPMG tender an apology for its governance lapses, it refunded
the fees it had received for its report. KPMG had since admitted that important quality
controls were not performed to the standard of the firm. KPMG also acknowledged
that insofar as the report “refers to legal opinions and legal conclusions as if they are
the opinions of KPMG South Africa” it was “outside the mandate of KPMG South Africa
and outside the professional expertise of those working on the engagement”. KPMG
then conceded that:
“...., the language used in section of the report is unclear and results in certain
findings being open to more than one interpretation. As a result, it is possible
to read [certain sections] contained in the report in a way which suggests that
Pravin Gordhan knew, or ought to have known, of the establishment by SARS
of an intelligence unit in contravention of the law that was ‘rogue’ in nature.
This was not the intended interpretation of the report. To be clear, the
evidence in the documentation provided to KPMG South Africa does not
support the interpretation that Mr Gordhan knew, or ought to have known, of
the ‘rogue’ nature of this unit”. We recognise and regret the impact this has
had. KPMG South Africa had no political motivation or intent to
mislead…Given the failure to appropriately apply our own risk management
and quality controls, that part of the report which refers to conclusions,

38
recommendations and legal opinions should no longer be relied upon. KPMG
South Africa has contacted SARS and offered to repay the R23 million fee
received for the extensive work performed”.
111. The KPMG report is flawed in fact and in law and its findings and conclusions
had been formally withdrawn. Any reliance by the Public Protector on the KPMG report
was, under the circumstances, irrational and ill-placed.
The IOIG Report
112. The third report relied upon by the Public Protector is a report said to originate
from the Office of the Inspector General of Intelligence. This report was issued on 31
October 2014. The Public Protector states in the Report that she was “reliably informed
that it was in the custody of the former Minister of State Security, Ms Dipuo Letsatsi-
Duba from whom [she] tried to get a declassified copy of the report without success”.33
She also states that she had requested the President’s assistance in making available
the declassified report by the Minister of State Security, but to no avail.
113. The Public Protector relies on this report despite explicitly stating that she has
not seen the report. She relies on it because she has it “on good authority” that it was
found in the report that:
(i) SARS had created a covert unit utilising covert and intrusive methods
which was not in line with the SARS mandate and in violation of section
209(1) of the Constitution which empowers only the President to
establish any intelligence service; and,
(ii) that the establishment of an intelligence capacity within SARS – a
capability exclusive only to legislated intelligence service – was illegal.
114. The Public Protector further recites the remedial action proposed by the OIGI
in its report namely that criminal charges be investigated against Minister Gordhan,
33 Ad para [5.2.26] of the Report of the Public Protector.

39
Mr Pillay, Mr Van Loggerenberg and a certain Mr Richer for the establishment and
involvement in the “intelligence unit” in SARS.
115. Despite the fact that the Public Protector, according to the Report, has never
seen nor verified the contents and findings of the OIGI report, she ordered the Minister
of State Security, to implement, within 90 days of the issuing of the Report, and acting
in line with the Intelligence Services Amendment Act, the OIGI report dated 31 October
2014 in its totality. The Minister of State Security was further ordered to ensure, within
30 days, that all intelligence equipment utilised by the unit is returned, audited and
placed into the custody of the State Security Agency. Finally, the Minister of State
Security was ordered to, within 14 days of the issuing of the Report, to avail a
declassified copy of the OIGI report to the offices of the Public Protector.34
116. The Public Protector further makes her findings in respect of the OIGI report
ostensibly in terms of the powers vested in her by section 181(2) and (3) of the
Constitution.35 It is difficult to understand on what basis these sections of the
Constitution can notionally grant the Public Protector the power to rely on a report that
she herself has not seen - because this is what she says in the Report. Although the
Public Protector undoubtedly has wide investigative powers, it does not follow that she
can blindly rely on evidence and facts that she is unable to verify independently, but
only became aware of “on good authority”. As was said by the Supreme Court of
Appeal in Public Protector v Mail & Guardian Ltd and Others:36
34 Ibid ad para [8.3.1] – [8.3.3].
35 “181 Establishment and governing principles
(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 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.”
36 2011 (4) SA 420 (SCA).

40
“[19] The Public Protector must not only discover the truth, but must also
inspire confidence that the truth has been discovered. It is no less important
for the public to be assured that there has been no malfeasance or impropriety
in public life, if there has not been, as it is for malfeasance and impropriety to
be exposed where it exists. There is no justification for saying to the public
that it must simply accept that there has not been conduct of that kind, only
because evidence has not been advanced that proves the contrary. Before
the Public Protector assures the public that there has not been such conduct
he or she must be sure that it has not occurred. And if corroboration is required
before he or she can be sure then corroboration must necessarily be found.
The function of the Public Protector is as much about public confidence that
the truth has been discovered as it is about discovering the truth.”
117. Had the Public Protector, however, applied her mind to the OIGI report and
“not relied on good authority” she would have appreciated the shortcomings of the
OIGI report and in turn would not have issued the impugned remedial action. Had she
applied her mind she would have realized two important aspects: (i) the Inspector
General acted ultra vires in investigating SARS’ officials and activities, and (ii) Mr Pillay
and Minister Gordhan were not afforded a hearing as the audi alteram partem principle
was not adhered to before coming to her findings.
118. Most alarming, however, and despite the fact that the Public Protector stated
in the Report that she did not have sight of the IOGI report before coming to her
findings, counsel acting on behalf of the Public Protector asserts, in their third set of
heads of argument, that:
“…the Public Protector made an independent assessment of the legal and
factual questions involved in her investigation on the SARS intelligence unit
and made her own conclusions. This investigation included assessing the
OIGI Report for its factual and legal conclusions. Having carefully studied the
OIGI Report and conducted her own independent investigation on the issues
covered in that report, she concluded that the findings and recommendations
in the OIGI Report be implemented. When she issued the remedial action on
the OIGI Report, she was satisfied that the OIGI had acted within its powers

41
in conducting the investigation and was correct in its factual and legal
conclusions”.
119. During argument, when counsel for the Public Protector was confronted with
the contradictory statements in the heads of argument, the debate regarding the OIGI
report took a bizarre turn. Counsel on behalf of the Public Protector now conceded
that, despite the explicit statement in the Report that she has not had sight of the OIGI
report in preparing the Report, she had in fact had the OIGI report in her possession
when she drafted the Report. The Public Protector now claims that she subsequently
received the OIGI report from an anonymous source who left it at her offices.
120. This turn of events is disturbing to say the least and it is difficult to label the
Public Protector’s conduct in this regard as anything else but dishonest.
121. In her heads of argument, the Public Protector criticised Mr Gordhan for
“making a meal of this in his complaint against the Public Protector” and that it was
“water under the bridge” as the Minister of State Security subsequently agreed to give
the Public Protector a declassified version of the OIGI Report with redactions of
sensitive information on it.
122. This argument, unfortunately, does not cure the blatantly misleading
statement made by the Public Protector in the Report. The comments made by the
court in South African Reserve Bank v Public Protector and Others,37 cannot be
overemphasized:
“[59] … However, there is no getting away from the fact that the Public
Protector is the constitutionally appointed custodian of legality and due
process in the public administration. She risks the charge of hypocrisy and
incompetence if she does not hold herself to an equal or higher standard than
that to which she holds those subject to her writ. A dismissive and procedurally
unfair approach by the Public Protector to important matters placed before her
by prominent role players in the affairs of state will tarnish her reputation and
37 2017 (6) SA 198 (GP) ad paragraph [59].

42
damage the legitimacy of the office. She would do well to reflect more deeply
on her conduct of this investigation and the criticism of her by the Governor of
the Reserve Bank and the Speaker of Parliament.”
123. Statements such as this made by the Public Protector in her answering
affidavit and heads of argument only serve to tarnish her reputation and damage the
legitimacy of the office that she holds. Those who are and have been the subject of an
investigation by the Public Protector, as well as the public at large, must have faith in
the integrity of the office of the Public Protector and its incumbent. After all, the Public
Protector is regarded as one of the most invaluable gifts to our nation in the fight
against corruption, unlawful enrichment, prejudice and impropriety in state affairs, and
for the betterment of good governance.38
124. Mr Van Loggerenberg has since the publication of the OIGI report successfully
reviewed and set aside the OIGI report.39 Any reliance thereon is (apart from the fact
that the Public Protector’s reliance thereon has, in any event, been highly irregular)
now moot, as the IOGI report is incapable of being implemented. Counsel on behalf
of the Public Protector, in a last desperate attempt, submitted that her reliance on the
OIGI report cannot be criticised as the OIGI report had not been reviewed at the time.
Her own ambivalence regarding the OIGI report discussed above totally discredits her
own report. There is no merit in this submission.
125. To add insult to injury, the Public Protector never provided the OIGI report to
Minister Gordhan and Mr Pillay to respond to during the Public Protector’s
investigation. The procedural unfairness of the process that led to the Report is dealt
with more fully elsewhere in the judgment.
126. But probably the most egregious, is the Public Protector’s failure to consider
the extensive body of evidence that Mr Pillay provided to the Public Protector. We will
now deal with this aspect in the context of the Pillay Application.
38 See Economic Freedom Fighters v Speaker of the National Assembly (2016) ZACC 1 at [59]
39 Court Order dated 8 June 2020. Case number 91150/19.

43
THE PILLAY APPLICATION
127. As stated previously, aside from the adverse findings made in the Report
against Mr Gordhan, the Report also implicates Mr Pillay in misconduct,
maladministration and criminality.
128. Mr Pillay was previously employed by SARS, and held various senior positions
within SARS from April 1999 until May 2015, when he left the employ of SARS. Those
positions include: Chief Manager Special Investigations; Chief Officer Enforcements;
Chief Officer Strategy and Enablement and Deputy Commissioner as well as Acting
Commissioner. The unit (HRIU), formerly known as the SPU (between March 2007 to
May 2008), and renamed NRG from May 2008 to October 2009, reported directly to
Mr Pillay from inception in July 2007 to March 2008.
129. At the time of delivery of the Report, Mr Pillay faced charges on an array of
criminal complaints,40 together with Mr Van Loggerenberg and Mr Andries Janse van
Rensburg (“Mr Janse van Rensburg”), arising out of a complaint made against them
by the former Commissioner of SARS, Mr Tom Moyane. The charges amongst others,
included the bugging of the offices of the erstwhile Directorate of Special Operations
(“DSO”) and National Prosecuting Authority (“NPA”) in 2007 and contravening the
Regulation of Interception of Communications Act.41 At the time that the Report was
published and the various affidavits deposed to by Mr Pillay were filed, an application
in terms of the provisions of section 179(5)(d) of the Constitution to review the decision
by the NPA to prosecute Mr Pillay, was pending before the NDPP. On 25 February
2020, the NDPP gave formal notice that the charges against Mr Pillay and his co-
accused were withdrawn as there were no reasonable prospects of a successful
prosecution.
130. In the course of the Report, the Public Protector made five adverse findings
against Mr Pillay. These findings will be dealt with under separate headings later in
the judgment. She found that:
40 Under Brooklyn CAS 427/05/2015
41 Act 70 of 2002.

44
i.SARS, under Mr Pillay’s guidance and management as General Manager:
Enforcement and Risk Division, established an intelligence unit "in violation of
South African Intelligence prescripts". (This aspect has already been dealt
with earlier in the judgment)
ii.Mr Pillay was involved in a failure by SARS to "follow proper procurement
processes in the procurement of intelligence equipment which the intelligence
unit utilised for gathering intelligence" (“the equipment issue”).
iii.Mr Pillay was involved in a failure by SARS to "follow proper recruitment
processes in appointing employees who worked for the intelligence unit" (“the
employment issue”).
iv.Mr Pillay was involved in the carrying out of "irregular and unlawful intelligence
operations". More particularly, that "Mr Pillay and Mr Janse van Rensburg
irregularly procured Mr Helgard Lombard and Mr De Waal and/or authorised
Mr Helgard Lombard and Mr De Waal to intercept communication from the
offices of the DSO and those of the NPA without an interception direction
issued by a designated judge in terms of the Regulation of Interception of
Communication and Provision of Communication (sic)” and that the “conduct
of SARS officials in such unauthorised interception and surveillance is in
violation of the Regulation of Interception of Communication and Provision of
Communication (sic) and amounts to an abuse of power as envisaged in
section 6(4)(ii) of the Public Protector Act" (“the interception issue”).
v.Mr Pillay was appointed to the position of Deputy SARS Commissioner and
subsequently as SARS Commissioner “whilst he did not possess the
necessary qualifications for the positions" (“the qualification issue”).
131. The Public Protector directed that the following remedial action be taken:

45
i.The Minister of State Security must, within 90 days of the issuing of the Report,
acting in line with the Intelligence Services Amendment Act, implement the
OIGI report dated 31 October 2014 in totality, and avail a declassified copy of
the OIGI report to the Public Protector, within 14 days of delivery of the Report.
ii.The NDPP to note that the Public Protector is “aware that there are currently
criminal proceedings underway against implicated former SARS officials and
that therefore effective steps should be taken to finalise the court process as
the matter has been remanded several times".
iii.The Commissioner to investigate the criminal conduct of Messrs Gordhan,
Pillay and officials involved in the SARS intelligence unit, for violation of
section 209 of the Constitution and section 3 of the NSI Act within 60 days of
the Report.
MR PILLAY’S GROUNDS FOR REVIEW
132. Mr Pillay raised, in essence, two complaints against the Public Protector’s
findings. The first complaint, namely the absence of any "special circumstances" or
any other basis on which the Public Protector could rationally exercise her discretion
in terms of section 6(9) of the Public Protector Act to entertain complaints older than
two years, has already been dealt with earlier. The second complaint is that the Public
Protector failed to obtain evidence and instead relied on unsubstantiated allegations
to support her findings and blatantly ignored the mass of evidence already at her
disposal and provided to her by Mr Pillay. As a result, so it is argued, the Report is
irrational and a product of a procedurally unfair and flawed process.
133. As stated earlier, in determining whether the Public Protector’s findings were
rational, it is important to ascertain what process she followed in coming to the findings
and what evidence was available to her when she made her findings. As a starting
point it is therefore necessary to briefly deal with the complaints against Mr Pillay as
set out in the subpoena (“the subpoena”), which was delivered to Mr Pillay by the
Public Protector on 10 April 2019 and the notice in terms of section 7(9) of the Public
Protector Act ("the notice"), which was delivered to him on 7 June 2019. It is also

46
necessary to briefly deal with Mr Pillay’s response to both these documents which is
set out in two affidavits. The first affidavit was deposed to on 23 April 2019 in response
to the subpoena (“the first affidavit”); and a second affidavit deposed to by Mr Pillay
on 18 June 2019 in response to the notice (“the second affidavit”).
THE EVIDENCE
The subpoena
134. The complaints against Mr Pillay are set out in paragraph 7 of the subpoena.
In paragraphs 7.1.3 to 7.1.5 the alleged unlawfulness of the establishment of the unit,
is raised, which have largely been dealt with earlier in the judgment. The remainder of
the complaints, relevant to Mr Pillay’s application, are the following:
7.1.6. SARS also irregularly, procured costly intelligence equipment which the
intelligence unit utilised for gathering intelligence;
7.1.7. SARS failed to follow proper recruitment processes in appointing
employees who worked for the intelligence unit;
7.1.8 The SARS intelligence unit irregularly bugged the offices of the National
Prosecuting Authority (NPA) and the Directorate of Special Operations (DSO)”.
135. Notably, the qualification issue was not raised in the subpoena issued to Mr
Pillay. It was, however, raised in the subpoena issued to Minister Gordhan.
The first affidavit
136. In the first affidavit in response to the subpoena, Mr Pillay stated that the
allegations contained in the subpoena had been made on various occasions over the
past ten years and have been refuted on each occasion. With particular reference to
the allegation in paragraph 7.1.5 of the subpoena, namely that SARS failed to respect
the "constitutional status, power and functions of the National Intelligence Agency", Mr

47
Pillay provided detailed explanations of the relationship between SARS and the NIA,
and referred the Public Protector to a myriad joint activities, interactions, support and
documents between the two bodies. He also referred to some circumstances where
the NIA acted unlawfully. He stated that he had informed the Public Protector that her
office and its previous incumbent had already, in 2014, received complaints regarding
the supposed unlawful establishment of the unit, and that the Public Protector had
elected not to further investigate the complaint, but rather focussed on complaints
concerning alleged irregular recruitment processes. He had therefore, at the time,
delivered a detailed response, including supporting documents, to the Public Protector
which dealt comprehensively with her requests. There was no further communication
from the Public Protector in this regard and he stated that it was accordingly clear that
the Public Protector was satisfied with the responses given and that the investigation
was closed. He stated that he was, however, not in a position to provide this
correspondence to the Public Protector, but that she would be able to find it in the
Public Protector's own records, as well as the records of SARS.
137. With particular reference to the allegation in paragraph 7.1.6, namely that
SARS "irregularly procured costly intelligence equipment, which the intelligence unit
used for gathering intelligence", Mr Pillay stated that he could not answer the allegation
because it was cast in vague terms and no specifics were provided to him. In this
regard he however referred the Public Protector to previous evidence given by him,
which included: (i) a statement issued by him on 2 March 2016, following a
presentation to the media by the then Minister of State Security, Mr David Mahlobo;
(ii) his statement to the Sikhakhane panel, and (iii) a report from the then Chief
Financial Officer of SARS, confirming that no such equipment was procured.
138. He informed the Public Protector that he had been restricted in his responses
and had difficulty providing certain documents due to the SARS secrecy oath he took
while employed with SARS, as well as the confidentiality provisions of the Tax
Administration Act.42 He further informed the Public Protector that he had, however,
made a formal request to SARS to supply him with the relevant documents during a
meeting that he attended with various SARS officials on 12 April 2019 when he
42 Act 28 of 2011.

48
informed SARS of the subpoena. Mr Kingon responded on 17 April 2019 to the request
as follows:
"Kindly be advised that l have considered your request and the contents of the
PP’s subpoena dated 10 April 2019 and wish to advise you that SARS is not
in a position to accede to your request pending counsel's opinion which I
intend to obtain urgently. It is our preliminary view that the requested records
contain inter alia, personal information of third parties, the disclosure of which
will be in contravention of legislation aimed at safeguarding data privacy
and/or SARS confidential information and/or taxpayer information
respectively, and information about internal operations at SARS, the
disclosure of which is likely to jeopardise the effectiveness of SARS operations
and/or procedures.”
139. He further informed the Public Protector that although the allegations in
paragraphs 7.1.3, 7.1.4, 7.1.5 and 7.1.6 of the subpoena were entirely devoid of merit,
he had been criminally charged with offences relating to the alleged establishment of
the unit and that he was entitled to the rights contained in section 35 of the
Constitution, and that he had chosen to invoke those rights in the face of the Public
Protector’s demand. He further stated that he had just cause, as contemplated in
section 11(3) of the Public Protector Act, to decline to respond to the interception issue
raised in paragraph 7.1.8 of the subpoena, because that particular allegation was the
precise subject of one of the charges that he faced at the time. He explained that,
although there was no merit to that charge, it would be remiss of him not to raise within
this context various incidents where individual operatives of the State Security Agency
(“the SSA”) and erstwhile NIA had unlawfully and illegally interfered in SARS’
operations, cases, audits, investigations and projects, and illegally and unlawfully
undermined SARS as institution and its officials. He stated that these incidents were
raised formally by SARS with the NIA and later the SSA, the Presidency and the
Inspector General of Intelligence on multiple occasions, and that the relevant records
can be obtained from them. He stated that none of these matters were ever
meaningfully investigated and resolved.
The notice

Gordhan v PP 7 December 2020 - final 2020-12-07

Gordhan v PP 7 December 2020 - final 2020-12-07

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