In the hundreds of pages of affidavits and arguments filed in court, Public Enterprises Minister Pravin Gordhan does not point to a specific statutory source of power to establish the “rogue unit” with its extraordinary powers.
So said lawyers for the EFF in a submission filed before the Constitutional Court last Friday in their appeal against the high court interdict preventing implementation of the Public Protector’s report that the SA Revenue Service (Sars) under Gordhan, a former commissioner, had unlawfully created a spying unit.
The most Gordhan has done, said the EFF in papers prepared by advocates Tembeka Ngcukaitobi and Jason Mitchell, “is rote some generic sections of the Tax Administration Act … which allows Sars to do all that is necessary or expedient to perform its functions properly, including ... to promote proper, efficient and effective tax administration”.
Sars evolved from a revenue-gatherer to a state-funded detective agency
“That’s far from enough. Parliament does not speak in code; if it intended to give Sars NIA-like [national intelligence agency-like] powers, it would have said so.”
The party said: “While Mr Gordhan was at its helm, Sars evolved from a revenue-gatherer to a state-funded detective agency, kitted out with all the things a good spy needs”.
The party said the spying kit included surveillance cameras, tracking devices, wire taps “and a host of other gadgets that are evidently sensitive enough to warrant redaction from the Public Protector’s report”.
The case, in which the EFF wants the apex court to overturn the high court interdict granted to Gordhan in July against Public Protector Busisiwe Mkhwebane’s report, will be heard on November 28.
Mkhwebane found in July that in terms of legislation, Sars was not included as one of the national intelligence structures established in terms of the National Strategic Intelligence Act.
She said: “The equipment was kept at Sars’ premises and was the latest technical surveillance countermeasures equipment that could be used for video and audio recording, as well as the tracking devices.”
READ: NPA to drop Sars ‘rogue case’
Mkhwebane’s remedial action included a criminal investigation and that President Cyril Ramaphosa take disciplinary steps against Gordhan.
However, the sanction has been put on hold by the high court pending the outcome of a review application to set aside the report.
The EFF told the Constitutional Court that other investigative reports, besides that of Mkhwebane, had also found the establishment of the Sars unit under Gordhan, who was then commissioner, to be unlawful.
These include the KPMG report and an Inspector-General of Intelligence report.
However, KPMG had later withdrawn some parts of its report and the admissibility of the report of the Inspector-General of Intelligence was subject to another pending court hearing in which State Security Minister Ayanda Dlodlo wanted the report removed from the record of Gordhan’s review application.
The rogue unit allegations date back to 2014, in which an investigation led by advocate Muzi Sikhakhane found prima facie evidence that the structure was unlawful.
An advisory committee led by retired Judge Frank Kroon agreed with Sikhakhane, but last year Kroon made a U-turn when he appeared before retired Judge Robert Nugent in an inquiry into Sars. Nugent did not investigate the unit but made a comment in passing that the unit was lawful.