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2 October 2016 00:14 (South Africa)
South Africa

SARS Wars, The Phantom Menace: Nhleko and Mahlobo come out to bat for the Hawks

  • Marianne Thamm
    marianne-thamm.jpg
    Marianne Thamm
  • South Africa
Photo: Ministers Nhleko and Mahlobo (3rd and 4th from the left) at the Wednesday's press conference. (eNCA frame grab)

Just one day after SARS had been sent to mop up some of the fallout from the SARS wars saga between Commissioner Tom Moyane and Minister of Finance Pravin Gordhan, the Ministers of Police and State Security were sent out on Wednesday to bat for the Hawks. The most alarming takeout from a media briefing is Nhleko's claim that the Hawks don't need a particular law or charge to question suspects, this in spite of the existence of a case number. As the two ministers addressed the media, Pravin Gordhan’s attorneys dropped a letter to the Hawks asking exactly the nature of the offence they are investigating. By MARIANNE THAMM.

Press conference during which the second battalion (the first was SARS earlier this week), Ministers of Police and State Security, are dispatched in an attempt to clarify matters relating to an investigation by the Hawks the SARS “rogue” unit and succeed spectacularly in obfuscating matters even further.

In a game of poker you want Nathi Nhleko as an opponent. He's got a lot of tells. He sweated profusely delivering his Nkandla report complete with the diversion of a video of the President's firepool set to the soundtrack of Eduardo de Capua's O Sole Mio. Now, after having been thrown under the bus by Zuma, it seems Nhleko is back for more.

On Wednesday, dressed in a sharp cobalt blue suit, the minister rubbed his hands and cleared his throat nervously at a puzzling and long-winded press conference called to address “a number of articulations and statements that have been made in the previous week pertaining to the work that the Hawks is doing in reference to the investigation that is being conducted into the ‘rogue unit’ at the South African Revenue Services”.

On the other hand, Minister of State Security, David Mahlobo, who sat next to Nhleko, was as cool as a cucumber. Inscrutable, as one would expect from a man who holds a lot of secrets, he calmly waited as the Minister of Police read out a patchy history of the apparent origin of the “rogue unit” saga, adding that Hawks’ questions to Finance Minster Gordhan did not mean he himself is facing an investigation or is even being charged.

Of course, the timing of the delivery of the list of 27 questions to Gordhan by Hawks boss Mthandazo Ntlemeza on 19 February a few days before he was due to deliver his budget speech — described by Gordhan as an attempt to “intimidate and distract us from the work that we had to do to prepare the 2016 budget” — was a matter Nhleko also sought to address, providing a rather novel explanation of why the timing should not be viewed as “political”.

“Now when you come from different offices as a journalist, the fact of the matter is that it is possible that, before getting here, you might have crossed a red robot or traffic light. Therefore it would be strange to expect that a traffic cop shouldn’t give you a traffic fine for a traffic violation because you were rushing to this press conference and therefore it is natural for the cop to do that. That traffic cop would have been complicit in one form or the other or perhaps for that matter did not have the proper calibration around the question of time so it was you rushing to the press conference. The fact of the matter remains that any law enforcement agency deals with issues as they pertain to a particular matter before them and therefore they necessarily conduct what they do around an area,” said Nhleko.

Well, that clears that up then. Nothing to see here, just move along.

Of course Mahlobo knew that while his colleague Nhleko was talking about traffic cops and denying that Gordhan was facing specific charges in relation to the investigation, Hawks boss, Mthandazo Berning Ntlemeza, had earlier sent a secret “information note” to Mahlobo himself referencing a specific case number, Brooklyn CAS 427/5/2015, and relating to the “Contravention of the Regulation of Inception of Communications and the Provision of Communications Related Information Act 2002”.

While Nhleko sat addressing media in the Imbizo Media Centre in Cape Town, Finance Minister Gordhan, through his attorneys, Gildenhuys Malatji Inc, delivered a letter to the Hawks’ boss responding to a demand that he reply to the list of Hawks questions by 4pm on Wednesday. Gordhan’s attorney referenced the Brooklyn case in the letter to Ntlemeza.

Gordhan’s attorneys wrote: “You will have been aware that, at the time your letter of 19 February 2016 was delivered, the Honourable Minister was engaged in preparing the national Budget Speech for presentation to Parliament on 24 February 2016. This is particularly so since when you telephoned on 18 February in an attempt to speak to him you were requested to contact him after the Budget Speech. You are aware of the national importance of the Budget Speech, and that he was not able to permit any distractions to jeopardise the Budget processes.”

In these circumstances, reads the letter to Ntlemeza, “he has only just been able to begin to consult with his legal representatives on the best way in which to respond to your letter, and the questions annexed to it. He is therefore unable to respond by 16h00 today as you have requested. He will respond in due course, once he has properly examined the questions and ascertained what information, of the information you request, he is able to provide. That said, we request the following information to assist him in preparing his response: On what authority do you rely on directing these questions to the Honourable Minister? Are you investigating any offence? If so, what is it? We look forward to your response at your earliest convenience.”

Shortly after the press conference, three ousted SARS officials, former deputy commissioner Ivan Pillay, strategic planning risk group executive Peter Richer, and group executive Johan van Loggerenberg all issued their own statements to the media.

Pillay and Richer said that comments by the Ministers of Police and State Security at the press conference were “a violation of our rights to dignity and reputation. We are left with no other option than to seek legal advice and to take appropriate action to defend ourselves”.

They said that so far all investigations that had been instituted, either by SARS or other state institutions “have never afforded us a fair opportunity to be heard or to have our side of the story represented. Allegations that the investigative units in SARS were unlawful and illegal, operated front companies including running a brothel, bugged President Jacob Zuma, spied on taxpayers and entered into illegal settlements for tax disputes, gave certain taxpayers preferential treatment, infiltrated taxpayers, broke into homes and planted listening devices and the like, are all false and unsubstantiated.”

They added that the allegation that SARS, during their tenure as managers, had purchased and used “sophisticated spyware” were “false and unsubstantiated” adding that the Ministers had relied on the Sikhakhane report “which is flawed in fact and in law, and is eminently challengeable, and the Kanyane report, which bears no relevance to the lawfulness of or not of the investigative units in SARS”.

Van Loggerenberg said he had worked for SARS for 16 years in various capacities and that he had always done so “lawfully so and in the interests of SARS and South Africa”.

I have no desire to speculate on the Hawks investigation at this stage, except to state that I have formally offered my full and complete co-operation to the Hawks via my attorneys some time ago when I became aware of these rumours. I did so in 2014 and then recently again. I deny that I have ever broken any law or done anything illegal (or allowed any unit or SARS official that reported to me to do so) whilst I was a SARS manager.”

He denied that SARS units, respectively known as the Special Projects Unit (SPU), the later National Research Group (NRG) and the High-risk Investigations Unit (HRIU), which he managed from March 2008 were illegally established or engaged in any illegal activity

I have always maintained that these allegations were false and deliberately planted with the Sunday Times to justify a particular narrative. I believe it equally noteworthy that to date, it would appear that none of the past ‘investigations’ (Kanyane, Sikhakhane, Kroon commission, Inspector-General of Intelligence and KPMG) have reflected on the actual work conducted by these units over the years. It is my hope that the Hawks investigation does.”

Facing a barrage of tough questions from journalists, including whether anyone could believe him after the Nkandla report debacle, Nhleko offered no further clarity, saying the Hawks or the police did not need a charge in order to conduct an investigation.

How do you investigate a charge? A charge is probably just about the final product. You can only be charged once an investigation has been conducted. An investigation leads to a situation perhaps where there are issues to be answered in law for example. That is where the issue of charges come in. I find this question of what is the charge strange. No one is investigating a charge. Also the question of what legislation are we using. The South African police is governed by the Constitution and the Police Act to conduct their work. It is in that framework,” Nhleko replied, painting rather broad strokes.

Who needs specifics anyway?

In other words, police can question anyone in relation to anything without telling them why or which law they might have broken or where they might have acted criminally. Sounds a lot like how the cops went about their work in the bad old days of apartheid. But we digress.

Commenting on the credibility or the reputation of Lieutenant-General Ntlemeza, who was described by Judge Elias Matojane in March 2015 as “biased and dishonest” in a case relating to a bid to oppose a ruling in favour of Gauteng Hawks Head, Shadrack Sibiya, Nhleko replied, “The judge did not make a finding. That was only his opinion.”

The response by those seeking to justify or clarify the Hawks investigation has now become a matter of semantics, interpretation and opinion rather than focusing on the serious facts at hand. Nhleko said the original complaint about an apparent “rogue unit” had been lodged by SARS in March 2015. A year and four expensive inquiries later (one by the IGI, the Kanyane panel, the Sikhakane panel and the Kroon inquiry) no one is any closer to bumping up against the truth.

In this game of smoke, mirrors and wordplay, there is only one way to cut through the crap. A completely new, competent and credible judicial commission of inquiry. It is the only way, the stakes are far too high. No more press conferences, please. And no more obfuscation. DM

Photo: Ministers Nhleko and Mahlobo (3rd and 4th from the left) at the Wednesday's press conference. (eNCA frame grab)

  • Marianne Thamm
    marianne-thamm.jpg
    Marianne Thamm
  • South Africa

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