SARS 'rogue unit' ruling: Mkhwebane should apologise to Judge Potterill, court finds

• The high court handed down judgment, setting aside the Public Protector's report into the so-called SARS rogue unit.
• A full bench of the court found that Public Protector Busisiwe Mkhwebane owed Judge Sulet Potterill an apology.
• The court also referred its judgment to the Legal Practice Council.

Public Protector Busisiwe Mkhwebane owes Judge Sulet Potterill an apology for the "blistering" and "personal attacks" on the judge, the Gauteng High Court in Pretoria said.

In July last year, Potterill granted Minister of Public Enterprises Pravin Gordhan an interdict against Mkhwebane's report on the so-called SARS rogue unit.

Mkhwebane then wrote, in an affidavit to Chief Justice Mogoeng Mogoeng and the Judicial Service Commission, that in granting Gordhan the interdict, the judge was "disparaging, derogatory and was actuated by personal spite", City Press reported.

In a damning judgment delivered on Monday, a full bench of the Gauteng High Court in Pretoria set aside Mkhwebane's report into the so-called SARS rogue unit. 

The court also issued a punitive costs order against Mkhwebane and described her conduct as "egregious", News24 earlier reported.

Mkhwebane found that former SARS commissioner Pravin Gordhan, who is currently the public enterprises minister, had inadvertently misled Parliament by failing to disclose a meeting he had with members of the Gupta family, and that he had violated intelligence laws by overseeing the establishment of an "intelligence unit" at SARS in 2007, also known as the rogue unit.

The court said: "In our view, this matter demonstrates that the Public Protector has failed to conduct her investigations in a manner befitting her office."

The judges also said, in her affidavit on the proceedings, that Mkhwebane strongly disagreed with the interpretation adopted by Potterill, namely that wilfulness is a requirement for a transgression of the Executive Ethics Code.

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"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," reads the judgment.

"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, advocate Mkhwebane, an officer of this court, owes it a duty to treat the court with the necessary decorum. "The high court also said Mkhwebane not only committed an error of law regarding the code, but that she was also contemptuous of the court and Judge Potterill personally.

"What makes this reprehensible conduct worse is that the remarks by advocate 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 Potterill an apology."

The court requested the registrar to send a copy of the judgment to the Legal Practice Council for consideration. It said Mkhwebane "bemoans the fact that Minister Gordhan had launched an attack on her integrity, which she labels as 'scandalous' and was 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 qualms launching a blistering and personal attack on a judge of this division".

When News24 contacted the Public Protector's office for comment, it said it was still studying the judgment.