Public Protector Busisiwe Mkhwebane's legal representative has said there were special circumstances to investigate complaints against Public Enterprises Minister Pravin Gordhan, despite the matter being more than two years old.

Day two of Gordhan and Mkhwebane's legal battle took place on Friday virtually before judges Selby Baqwa, Leonie Windell and Annali Basson of the Gauteng High Court in Pretoria.

Gordhan is seeking to review a report by Mkhwebane which found he was complicit in the establishment of an allegedly unlawful investigation unit within SARS and that he misled Parliament when he said he did not meet with members of the Gupta family.

On behalf of Mkhwebane, advocate Thabani Masuku, SC, said the Public Protector sourced investigative powers from various sections of the Constitution.

While the Public Protector Act stated that the Public Protector cannot investigate a complaint relating to a matter which was more than two years old without determining special circumstances, Masuku said these circumstances did exist.

Exorbitant costs

He explained that Mkhwebane had it on good authority that unlawful surveillance equipment, allegedly procured at exorbitant costs, was still being used to intercept communication by the unit, which had not been completely disbanded.

Judge Basson pointed out that Mkhwebane could have investigated this complaint alone if this was the case.

"The circumstances that informed her decision was the fact that surveillance equipment was illegally acquired and that it was still being used. Now if that was her reason at that time, why did she not investigate the use of illegal equipment?

"If you look at her report it is clear that what she in fact did was to investigate the establishment of the unit… What facts, not considerations, ultimately informed her that there were special circumstances to investigate the unit beyond the two year period?" Basson asked.

Masuku explained that the ability of the Public Protector to determine the facts depended on her ability to investigate.

He added that when Mkhwebane took on the complaint, she did so with regard to the nature of the complaint, and it would have been dereliction of duty to ignore this.

The fact that the matter has been in existence for more than two years and in the public domain, "might well be a reason why it justified her investigation but the justification for investigation is simple in that there was now a complaint requiring her to investigate", Masuku said.

He added that the Public Protector should wait for a complaint before investigating.

"That's really the best answer I can give to your question, because it is consistent with the approach that she takes in her own report that when she considers special circumstance there are certain factors that must go into her consideration, she doesn't know the facts until she has investigated," Masuku said.

On Thursday, Gordhan's legal representative maintained that despite being asked numerous times, Mkhwebane did not disclose these special circumstances for investigating the case.