NEWS ANALYSIS
The prosecution of Minister of Finance Pravin Gordhan is ethically dubious, a lawyer for the South African Revenue Service said in an email chain that has set off an explosive series of events in the past ten days, including an alleged “hostage” drama at a Sars office in Pretoria.
The M&G can reveal that four Hawks officials are accused of using physical force and “apartheid-style tactics” to retrieve a printout of the damning email from senior Sars employee Vlok Symington. Among them was Brigadier Nyameka Xaba, the Hawks’ lead investigator in the case against Gordhan.
Symington was allegedly left with bruises on his forearms and hands from the altercation.
Dramatic video and audio recordings suggest that Sars Commissioner Tom Moyane might have been consulted and updated during the alleged “hostage” situation.
It further confirms that the agitated Symington repeatedly phoned for assistance to numerous quarters, including the police emergency number.
The recordings were made by Symington and handed over, with other evidence, to the Independent Police Investigative Directorate (Ipid), which is now probing the matter.
The M&G has requested comment from all parties involved and will update this article with comments as soon as it is received.
This bizarre incident was triggered by an email Moyane had seemingly erroneously shared last week. The chain of events kicks off with Gordhan lead prosecutor Torie Pretorius emailing Xaba. Herein he asks Xaba to obtain a statement from Symington. That happened just before 5pm on October 17. Pretorius attached a list of questions for Symington to answer. The questions relate to a legal opinion Symington wrote in 2009 addressing whether Sars is permitted to pay out former Sars deputy commissioner Ivan Pillay’s pension fund and re-hire Pillay on a contract basis.
Symington’s legal opinion states that there is “no technicality” that prevents Sars from reappointing Pillay and that he is “entitled” to request Gordhan (minister of finance at the time, during his first round) to waive the early retirement penalty.
Charges of fraud recently brought against Gordhan, Pillay and former Sars commissioner Oupa Magashula all relate to this pension payout.
A few minutes after receiving the email from Pretorius, at 5.07pm, Xaba asks Sars lawyer David Maphakela to deal with the NPA’s request as a “matter of urgency”. Maphakela is a partner in the Gauteng lawyers firm Mashiane Moodley and Monama Inc. It is then that Maphakela emails Moyane the following offending message:
“Kindly find this for your urgent attention. On ethical reasons, I cannot be involved in this one, as I hold a different view to the one pursued by the NPA and the Hawks.” This short but powerful message, essentially suggesting that Sars’ own lawyer does not agree with the prosecution of Gordhan and co., would set off an explosive chain of events.
By Moyane’s own doing, this message has now found its way into the public domain.
It seems that at some point after this exchange, Moyane handed a hard copy of Pretorius’s questions, along with the entire email trail, to senior Sars employee Kosie Louw, to whom Symington reports. Louw asked Symington to answer Pretorius’s questions.
At about 10am on Tuesday October 18, Moyane’s bodyguard and the Hawks, including Xaba, meet with Symington.
The meeting seems to have been congenial, with the Hawks explaining what they would need from Symington.
Serious questions should, however, be raised on why Moyane’s bodyguard, Thabo Titi, accompanied the investigators.
It becomes pertinent when Xaba, Titi and the Hawks return at 1pm, allegedly robbed of their congeniality. Questioning Titi’s instructions and bona fides even become critical when he is recorded seemingly blocking Symington from exiting the boardroom as well as keeping Sars security officials and Symington’s PA from entering the boardroom.
In one recording Titi can even be heard telephonically consulting with a person he calls “commissioner” and “sir” whilst ordering Sars security to stay outside. According to insiders Titi was speaking to Moyane.
The Hawks demanded the printout of the email and questions.
At some point a clearly agitated and intimidated Symington pushed the record button on his phone. He can be heard repeatedly shouting that he is “being held against my will” and “I’m being held hostage”. The recording seems to have been done in secret, however Symington can be heard at one stage warning Titi that he was filming the blocking of his exit.
Symington also made at least three phone calls – two to his PA and one to 10111. Symington asked his PA to call the building’s security because he is being held “hostage” and “against my will”. The second time he enquired what was keeping security.
Symington seemingly got no joy from 10111. The woman answering the emergency call rather focused on whether Symington knew the people keeping him hostage and quizzed him on why he is allowed to phone whilst being a hostage. She further struggled to grasp where Symington was – in Sars’ Khanyisa building in Brooklyn, Pretoria.
From the recordings it is clear that between 10am and 1pm on Tuesday October 18, the Hawks’ attention suddenly shifted from the “urgency” of Symington answering the NPA’s questions to their panicky attempts to get him to hand over the document.
Sars insiders say this was after the Hawks left Symington the first time and walked across the road to Lehae la Sars, the main building and location of Moyane’s office.
Symington can also be heard in the recordings airing his surprise by the sudden ominous turn of the Hawks’ tone, stating that they had had “such a good meeting” in the morning.
Xaba was adamant about retrieving the document that contained the email trail and critically the Sars lawyer’s comment to Moyane. He can be heard saying that the document has been given to Symington “by mistake”. He further explains repeatedly that if he should take Symington’s Sars ID card, with Symington’s name on it, it would be “by mistake” – an argument difficult to repeat because it is devoid of any sense or reason.
One can however derive that Xaba wanted to trade the document in Symington’s possession for another copy of the NPA’s questions- without the offending message from the Sars lawyer.
Symington bluntly refused. During the recorded conversation it is clear that he has caught on to why Titi and the Hawks so desperately wanted the document back.
“It must be about the attachments,” he can be heard asking Xaba, referring to the email, including the offending message.
At one stage Symington’s boss Kosie Louw and colleagues Eric Smith and Mark Kingon join the unraveling meeting.
Louw asked the Hawks to leave the room and give the Sars ensemble “five minutes” with Symington.
His colleagues try to placate Symington, seemingly trying to coax him into giving the document to the Hawks.
Symington does not budge.
It is at this time – about an hour after he was first mentioned being held “against my will” – that Symington loses his patience.
“The commissioner’s bodyguard is holding me hostage,” Symington shouts.
The bodyguard seems to have retreated after this strong assertion.
And when Symington exited the door, all hell broke loose.
In the chaotic recording shouts can clearly be heard. It is a moment described by an insider where “the Hawks pounced on him and roughed him up a bit whilst taking the document by force at the moment Symington exited the room”.
Symington’s repeated shouts of “he stole the document” intermingles with the soothing voices of his colleagues, saying: “Vlok, kalmeer nou” (Vlok, calm down now).
The desperation displayed by the Hawks, with the seemingly tacit consent of Moyane, is the clearest show of the lengths certain extremely powerful organs of state are willing to go to prosecute Gordhan and his co-accused. It further confirms, from within the prosecutorial camp itself for the first time, what a near-universal chorus of legal experts have said – that the case against the finance minister is fatally flawed. Most worryingly, it displays the increasingly desperate lengths they are willing to resort to execute their plan. Violence and intimidation – tactics reminiscent of the apartheid era State of Emergency – seem to be back in vogue.
It comes on the back of a last-minute subpoena the NPA issued to the chief executive of the Government Pensions Administrations Agency for documents to explain the approval of early retirement requests.
An affidavit filed by Francis Antonie of the Helen Suzman Foundation states that the timing of this subpoena suggests a “desperate, eleventh-hour” bid to prop up the prosecution of Gordhan which was clearly hopeless from the start. The foundation, along with Freedom Under Law, have launched a legal challenge against the NPA over the Gordhan prosecution.
The very basis of the fraud charge against the finance minister is in his approval of Pillay’s early retirement.
“This is information the NPA should have gathered long before any decision to prosecute was made and the NPA’s failure to do so underlines the irrationality and unlawfulness of its decision.
“This is especially so given that the information is likely to be exculpatory,” the HSF said in a media statement.
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