The past decade has been characterised by the paralysis of law enforcement agencies to act against corruption, the looting of state coffers, the catastrophic dismantling of the revenue collection and enforcement capability at the South African Revenue Service (Sars), and rise of a parallel security state targeting political opponents of the state-capture project. Each of these aspects of state capture and the political context is relevant to understanding the need for this review application.
[One aspect is] the renewal and building of state institutions - whether law enforcement agencies, the State Security Agency, Sars or other public enterprises - since the election of President Cyril Ramaphosa, and my specific mandate to restore good governance and leadership, and root out corruption within our state-owned companies and all efforts that seek to halt and reverse state capture.
This "renewal" project is fiercely resisted by those rogues who seek political advantage, who stand to lose their access to looting opportunities within the state, who are at risk of criminal prosecution and who seek to return SA to the dark path of lawlessness, corruption and securitisation.
The fightback is waged by, among others, my political opponents. They seek to taint me and other leaders who work for a better SA for all its people. In doing so, they advance the factional battles which sow discord and undermine confidence in our country. I reject this campaign and will continue to repeat the truth as many times as necessary until it is clear what the facts are: there was no "rogue unit" at Sars.
It appears that the public protector, whether wittingly or unwittingly, has permitted her office and its extensive powers to be weaponised in this political war against unity and renewal.
The public protector in this report contends that disciplinary action should be take against me for "violation of the constitution and the ethics code". This is the second report by the public protector that unlawfully, unfairly and irrationally targets me, for which I have to launch review proceedings.
It is clear when one considers the two reports together that the public protector is seeking to achieve my removal from office as a member of the executive, to achieve political objectives. That would only serve to facilitate the state-capture project and activities. It will also undermine the renewal of state institutions, currently under way, and will promote the interests of political proponents of state capture.
During my tenure as commissioner of Sars, I authorised the establishment of an investigation unit in about 2007. The unit did not initially have a name but was later successively known as the Special Projects, the National Research Group and the High-Risk Investigative Unit. I shall call it the Sars investigative unit.
The unit was established against the backdrop of the government's commitment to crack down on crime generally, and on organised crime in particular. It became apparent that Sars had to enhance its intelligence-gathering capacity in respect of combating organised tax crime and illicit trade. The unit was part of the broader Enforcement Division of Sars. It was very similar to, and modelled on, the enforcement capabilities required in any tax and custom administration in the world. Noncompliance could include non-submission of a tax return, incorrect information on a tax return, aggressive tax avoidance, tax evasion, smuggling across borders of cigarettes, tobacco and other forms of illicit trade.
Section 4(1)(a) of the Sars Act provides that Sars must secure "efficient and effective, and widest possible enforcement" of tax laws. Sars has thus always had its own investigation and enforcement units engaged in a wide range of investigations, including criminal investigations with tax implications.
The unit was responsible for cracking down on organised tax crime and tax evasion and did so through collaboration with various government departments such as home affairs, trade & industry, environmental affairs and other law enforcement agencies. This commendable work came under attack in recent years from powerful businesspersons and politicians whose unlawful gains were being threatened by the work of the Sars investigative unit. Simultaneously, disgruntled members of the Sars investigative unit spread falsities and rumours about the Sars investigative unit. This became known as the so-called "rogue unit narrative".
This narrative has been in circulation for several years now as part of a political campaign. The start of this campaign coincides with the tenure of [Sars] former commissioner Mr Tom Moyane. This narrative was used to justify the demolition of critical parts of Sars's enforcement capability under Mr Moyane.
The Sikhakhane panel rendered a report to Mr Moyane, dated November 5 2014, that misapplied the law and erroneously concluded that the Sars investigative unit was unlawfully established. Mr Moyane used the Sikhakhane report to remove several Sars officials and reorganise Sars, thereby gutting its enforcement capability and undermining its ability to ensure tax compliance by prominent political and underworld figures.
Remedial action formulated by the public protector is incompetent, unlawful, improper and not capable of implementation. Given that there is no basis to make any adverse findings against me, there is no reason for the president to "take appropriate disciplinary action against me for violation of the constitution and the Executive Ethics Code". In addition, the meaning of "appropriate disciplinary action" is unclear and impossible to implement since I am not employed by the president in the traditional sense, I serve at his pleasure.
The remedial action is evidence of overreach by the public protector in prescribing the president's response to her findings. The public protector is biased, or at least subject to a reasonable perception of bias. It is evident she was determined to make adverse findings and impose remedial action against me and other implicated persons regardless of the facts or law placed before her in the investigation.
I do not make these statements lightly. I acknowledge that as a committed constitutionalist, proud South African and member of cabinet, I must respect the office of the public protector. However, my position similarly enjoins me to make this court aware of bias on the part of the occupant of that office and her abuse of its powers for political objectives.
• This is an edited version of the high court affidavit filed by minister of public enterprises Gordhan in support his application to review the public protector's report on the
so-called Sars rogue unit
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