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Our Ref: T MALATJI Your Ref: Date: 10 July 2019

Direct Tel: 011 072 2601 Direct Email: tmalatji@mcinc.africa


1.On behalf of our client, Min Gordhan, we lodged an urgent application today to suspend and
interdict enforcement of the remedial orders by the Public Protector and also to review her
Report, No 36 of 2019/20 - “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” (sic) (“the Report”).

2. In summary, the application is undertaken for the following reasons:

 In terms of the Public Protector Act, the Public Protector must justify or provide “special
circumstances” to entertain any complaints regarding events or conduct that is more than
two years old. Despite repeated requests for an explanation on what “special
circumstances” she relied on for this investigation of matters from as far back as 2007,
none has been forthcoming;
 The Public Protector misunderstands the law to arrive at a pre-determined outcome
relating to the powers of intelligence services. There is no legal obstacle to SARS
establishing an investigative unit to deal with the tax implications of organized crime and
illicit trade like cigarette smuggling. In fact, this capacity is being re-established thanks to
the findings and recommendations of the Nugent Commission of Inquiry;
 The Report ignores facts and their significance to reach its findings regarding the
establishment of the SARS investigative unit. Among these are the discredited
Sikhakhane panel report and its erroneous legal reasoning, the Sunday Times’ apology in
April 2016 for its reporting relating to the SARS unit, Judge Kroon’s apology to the
members of the unit for not interrogating the issues and making wrong findings, KPMG’s
withdrawal of its report and refunding of the fees earned for it.
 The Public Protector misapplies the provisions of the Constitution and applicable
legislation when making adverse findings. For example, section 209 of the Constitution


Directors: Tebogo Malatji B Proc LLB Sunelle Eloff B Com LLM Bonang Masia LLB Sayi Nindi LLB LLM
Practising Consultant: Molatelo Mathikithela LLB (Notary & Conveyancer)
Associates: Ally Makgopa LLB Khathutshelo Nethavhani LLB LLM Reg No: 2018/261984/21
Managers: Tummy Seboko (Office Manager) Kholofelo Mokaba (Marketing Manager) Vat no: 4920281922

regulates the establishment of intelligence services. It does not prevent SARS from
establishing an investigative unit.

3. The application by Min Gordhan also seeks to review and set aside the Report and have it
declared unlawful, unconstitutional, irrational and invalid. (Part B of the Notice of Motion)

Part A

4. Among other things, the court is asked to:

 declare that the Public Protector’s remedial orders are suspended, until the judicial review
of the Report is concluded; and
 interdict the Office of the Public Protector (first respondent) and Adv Busisiwe
Mkhwebane (second respondent) from enforcing the remedial orders until a judicial
review of the Report is concluded.

Part B

5. In terms of Part B an order is sought in the following terms:

 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.

 It is declared that the Public Protector, and Advocate Mkhwebane personally, dishonestly
or, alternatively, recklessly made her findings in the Report against Min Gordhan, in that
they knew that the findings were false or were reckless as to their truth.
 The Public Protector, and Advocate Mkhwebane personally, are ordered, jointly and
severally, to pay the applicant’s cost on the scale of between attorney and client.

6. As Min Gordhan states in his affidavit:


“228 Finally, whilst I have great respect for the Office of the Public Protector I
doubt the competence, integrity, legal literacy and constitutional grasp of
its incumbent of her powers, duties and functions.

“229 Whilst it is unfortunate that these sentiments must be expressed, I

maintain that the suspension and interdict will be in the overall interests
of justice because I strongly doubt the bona fides of the Public Protector
in investigating and issuing the Report. The Public Protector has
confirmed that I am the subject of three ongoing investigations by her
office, I am not aware of anyone who has been singled out and pursued
by her Office in this way…

“231 Instead of dealing with the pressing complaints of citizens, she is using
the office for ulterior motives or the political motives of others. My belief
is that the resources of this esteemed office are best employed doing
what it was constitutionally envisioned to do i.e. protect the public from
ongoing maladministration and not abused for improper and blatantly
political motives.

“232 The competence and credibility of the Public Protector and her
understanding of the Constitution have already been negatively
pronounced on by Courts. Above, I discuss in detail the adverse costs
order that has been made in respect of her, the scathing critique by the

Courts made against her and the applicants who have successfully
interdicted the release of her reports, because she denied them
procedural fairness, or have had those reports set aside on the basis that
her findings were unconstitutional and unlawful…

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“234 In light of what is set out above, Adv Mkhwebane should be ordered to
pay the costs of this review application personally and on a punitive

“234.1 Once again, she has demonstrated that she is unfit to hold the Office of
Public Protector.

“234.2 She continues to ignore her constitutional mandate, act without regard to
the provisions of the law and seemingly in service to some other motive
or agenda.
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“234.3 Her conduct is the latest example of her now lengthy history of acting
incompetently, unlawfully, unconstitutionally, unfairly and unjustifiably.

“234.4 An adverse costs order would be one way for this Court to join in those
earlier efforts to correct her approach to her important work.

“234.5 Indeed, her seeming lack of reflection on her role and powers in light of
those other decisions is a further basis for the costs order against Adv
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“234.6 The taxpayers of South Africa should not have to continue to fund her
unlawful conduct.


For further media enquiries:

Tebogo Malatji: +27 (0)83 676 6238

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Adrian Lackay: +27 (0)83 388 2580