The public protector has subpoenaed Public Enterprises Minister Pravin Gordhan and former South African Revenue Service (Sars) commissioner Oupa Magashula to answer questions related to a complaint over the establishment of the alleged “rogue unit” at the tax agency.
Gordhan was Sars commissioner between November 1999 and May 2009 and Magashula from 2009 to 2013.
The Mail & Guardian understands that advocate Busisiwe Mkhwebane has given Gordhan and Magashula seven days to reply to her questions to be submitted to her office by April 23.
It is understood the questions resemble the 27 questions sent to Gordhan in 2016 by the Hawks on the eve of the then finance minister’s budget speech. The Hawks investigation never led to criminal charges.
Instead, Gordhan was charged for an alleged unlawful pension payout to former Sars deputy commissioner Ivan Pillay, charges that were dropped by the National Prosecuting Authority (NPA) less than a month later.
Mkhwebane also wants the pair to respond to questions about whether Sars’ pursuit of the tax affairs of Economic Freedom Fighters (EFF) leader Julius Malema, “without a legal basis”, was “based on an instruction from Mr Gordhan”, who was finance minister in 2012.
The EFF has publicly said it complained to Mkhwebane about the establishment of the alleged rogue unit, but it is unclear whether these latest subpoen as are related to the EFF complaint, as the public protector is currently investigating two separate complaints against the two former Sars heads.
The public protector’s office refused to comment.
Gordhan’s spokesman Adrian Lackey confirmed receipt of a second subpoena. “The same set of allegations have repeatedly been investigated by various institutions, including the office of the public protector, and no conclusive evidence could be found of any illegality by Sars or Minister Gordhan,” Lackay said.
He said the latest subpoena was leaked to the media while Gordhan was consulting lawyers on his“persistent harassment” and was a “flagrant abuse of office”. Lackay said this was another example of a fightback campaign to disrupt efforts to prosecute corruption in state-owned entities.
The EFF complaint claims Gordhan established the unit “in violation of intelligence prescripts”, based on an investigation by advocate Muzi Sikhakhane. The Sikhakhane report, which Sars commissioned in 2014 and released publicly in 2015, found the establishment of the unit was unlawful and that there was “prima facie” evidence it may have abused its power. It recommended a judicial commission of inquiry to investigate.
The Nugent commission heard that, subsequent to Sikhakhane’s report, axed Sars commissioner Tom Moyane had procured a legal opinion thatfound that legislation allowed for the unit’s establishment. Judge Nugent, in his final report, said it was unclear why the establishment was considered unlawful.
Mkhwebane further asked about “Project Sunday Evenings”, involving alleged bugging of NPA offices by former Sars employees. Pillay is facing criminal charges for this and an application for a permanent stay of prosecution will be heard in court next week.
Magashula declined to comment.
Mkhwebane also met Democratic Alliance leader Mmusi Maimane this week in relation to his complaint against President Cyril Ramaphosa over a R500 000 donation to his campaign to become president of the ANC by the state capture-tainted services company Bosasa.