South Africa

SARS Wars: The scope creep of a malicious prosecution – Same case, different charges

By Marianne Thamm 11 October 2016

Thing is if you're going to make a song and dance and go for the Minister of Finance in public the least you can do is not recycle an old case number. That's what happened on Tuesday when the NPA announced it was charging Pravin Gordhan, former SARS Commissioner Oupa Magashula and Deputy Commissioner Ivan Pillay with fraud. The oversight by the NPA confirms allegations that Gordhan faced a “moving target” and that a sort of “scope creep” has occurred in apparent backroom manoeuvres by the Hawks and the NPA. Meanwhile the NPA's decision has been roundly condemned by just about everyone, except the ANCWL of course. By MARIANNE THAMM.

CAS 427/05/2015 was opened by SARS Commissioner Tom Moyane on 16 May 2015 when he informed a SAPS Lieutenant Colonel at the Brooklyn charge office in Pretoria that an alleged crime had been committed at SARS headquarters sometime after 4 May 2007. Moyane had been appointed by President Zuma to the SARS top job only five months earlier.

The 16 May 2015 case was opened specifically against former SARS Commissioner and current Minister of Finance Pravin Gordhan, SARS Deputy Commissioner Ivan Pillay, Group Executive Johann Van Loggerenberg as well as other officials and was related to allegations of a so-called “rogue unit”.

A City Press tracking of the docket through the SAPS CAS system revealed that the Hawks had at first not shown any interest in the matter. The case was, in fact, closed in December 2015 after junior police officers at Brooklyn, a captain and a warrant officer, had been unable to make any progress.

On 10 September 2015, then-Major General Mthandazo Berning Ntlemeza was appointed by Minister of Police Nathi Nhleko to head the Hawks after former head, Anwar Dramat, had been suspended for his alleged role in the “Zimbabwean rendition case”. These were charges that were “trumped up”, said IPID head Robert McBride, who himself was suspended shortly after. After his appointment, Ntlemeza was immediately promoted to the rank of Lieutenant General.

Eight months later, in May 2016 Brooklyn CAS 427/05/2015 was reopened and transferred to the crime intelligence unit.

The glaring gap in all of this is that in February 2016, four months earlier, while the case was still officially closed, head of the Hawks Crimes Against the State Unit, Brigadier Nyameka Xaba, sent Minister Gordhan the now-infamous list of 27 questions relating to the “rogue unit”. President Jacob Zuma had been reportedly “taken through the ‘cold’ case” the same month.

This year, on 26 September, SARS reiterated that Commissioner Moyane “had played no role” in the launch of the Hawks investigation into Gordhan, but said that the revenue service had been “obliged to open a criminal case last year after two officials confessed to being involved in unlawful spying activities.”

SARS added that “this criminal case is not linked to the current investigation by the Hawks and has rubbished reports of ongoing tension between Moyane and Gordhan”.

There you have it, nothing to see here…move along…but wait…

CAS 427/05/2015 was miraculously resurrected on Tuesday when NPA head Shaun Abrahams announced that the authority had elected to now prosecute Gordhan, Pillay and former SARS Commissioner Oupa Magashula on charges of fraud relating to a pension payout to Pillay of around R1.2 million in 2010. These charges did not feature at all in the original complaint.

Summons No 574/16 served at Gordhan’s home while he was addressing an Open Tender conference in Johannesburg on Tuesday has scribbled in handwriting at the top “CAS Brooklyn 427/05/2015”.

The sudden decision to charge Gordhan and others, Gordhan’s attorney Tebogo Malatji of Gildenhuys Malatji said on Tuesday, indicated that the nature of the charges Gordhan faced were a “moving target”.

First he was told he was not a suspect. In August he was told to give a warning statement suggesting he was a suspect, and now he is facing different charges,” said Malatji.

Malatji said that “it is most unfortunate that the Hawks have, once again, chosen to initiate legal proceedings at a moment that appears calculated to maximise the damage inflicted on the economic well-being of South Africans and essential processes of government.”

Gordhan, said Malatji, wished to place on record that he would “continue to cooperate fully and in an exemplary manner in the execution of all legal requirements that are placed upon him. To this end, the Minister’s legal team have had extensive interactions with the Hawks over the last six months, including providing for clear communication channels in the even that any further legal proceedings are initiated.”

Despite this, the Hawks chose to arrive unannounced at the Minister’s private residence and, discovering he was not at home, proceeded to the offices of the National Treasury to serve the summons.

Shortly thereafter, and again without the courtesy of a prior indication, the National Director of Public Prosecutions convened a press conference to unveil a set of charges that are patently without merit.”

More or less the same time, NPA head Shaun Abrahams convened the press conference and, said Malatji, “chose to dwell extensively on allegations concerning the SARS investigative unit under question, which he is not yet able to prosecute. He then turned to the content of the summons, which is concerned with the matters of an administrative – not criminal – nature.”

Meanwhile the NPA’s decision has been met with widespread shock and condemnation.

In a statement, Business Leadership South Africa said that it was “deeply concerned about both the timing and the decision to charge the Finance Minister, Pravin Gordhan, and two former senior SARS employees with fraud. Our country is experiencing a period of profound upheaval. With another rating agency review ongoing, the Medium Term Budget Policy Statement (MTBPS) weeks away, serious social protest and violence occurring at our universities, and a number of contentious disputes between state institutions playing out in public, this decision could not have come at a worse time.”

The statement issued by BLSA president Saki Macozoma, Chair Bobby Godsell and CEO Thero Setiloane added that while “no-one is above the law and it is not our intent to second guess the country’s Director of Public Prosecutions” the nature of the charges and how they have been pursued “creates a strong perception that our prosecutorial institutions are being used for political ends. In the current context, this cannot but be to our detriment as a country and is sure to hold us back as we seek to build an economy that addresses the triple headed Hydra of poverty, unemployment and inequality.”

In a statement, SACP National Spokesperson and head of communications, Alex Mohubetswane Mashilo, said that while no one should be above the law, the “putative charges that the Hawks have, for a while, been making against the Minister, who has now apparently been issued with summons in relation to the so-called South African Receiver of Revenue or SARS rogue unit, are a pretext to have him removed from office and weaken the National Treasury’s struggle that he is leading against corruption and corporate capture.”

The party had, noted Mashilo, the denial of any political involvement in the matter “but also that after assuring Gordhan that he was not a suspect, and then pausing for the local government elections, the matter was suddenly back on the table just after the elections. The timing has an eerie similarity with the events that unfolded between 2003 and 2007, when the timing of another prosecution against a senior politician appeared to be coordinated around a political calendar.”

The NPO Freedom Under Law also issued a statement saying it is “shocked by this morning’s disclosures by the National Prosecuting Authority. FUL has little confidence in the competence and integrity of the NPA and deplores the melodramatic manner in which it saw fit to broadcast its decision to bring certain charges against Minister Gordhan and others.”

While FUL believed it is wrong to comment on the merits of charges pending before the courts, and emphasised that it had every confidence that the courts would resolve such charges satisfactorily, “we do, nonetheless, point out that not only the Minister himself but several others have expressed their profound disagreement with the legal and factual basis of these charges.”

With regard to allegations of the SARS “rogue unit” which Abrahams had “tagged on” to his press announcement, “we are satisfied that there is no merit in any of the allegations of criminality.”

The Helen Suzman Foundation (HSF) said that it had noted that Gordhan had been summoned to appear in the Pretoria Magistrate’s Court on 2 November to face two charges; a charge of fraud, or alternatively a charge of theft, in relation to a payment to Ivan Pillay in respect of Mr Pillay’s early retirement and a charge of fraud in respect of a four year contract for the further employment of Mr Pillay.

Deputy President, Mr Cyril Ramaphosa, is reported as having urged that nothing must be done to cause problems or difficulties in state institutions such as the Treasury, or to damage our economic future. We agree with him. One implication is that Mr Gordhan should not be removed from his office on the grounds of the accusation against him. A second implication is that, if the charges are found to be without merit, the National Prosecuting Authority will have damaged the economy for no good reason. As in the case of the dismissal of Minister Nene in December 2015, the reaction to the accusation of Mr Gordhan has been an immediate depreciation of the rand. Further decline in domestic and foreign confidence in a weak South African economy will follow,” said the HSF.

The accusation against Gordhan, said the HSF, took place against “the backdrop of a wider crisis of governance in South Africa. Alertness to the quality of our constitutional democracy, always important, is essential at present.”

EFF CIC, Julius Malema, reacted to the NPA’s announcement encouraging South Africans to gather en mass in Pretoria on 2 November in support of Gordhan. On Twitter Malema said that charging Gordhan and others was President Zuma’s retaliation for Thuli Madonsela’s investigation into State Capture.

The Presidency (President Zuma is currently in Kenya having been flown there on a chartered plane) issued a statement on Tuesday that the president “has noted the announcement by the National Prosecuting Authority”.

Presidential spokesperson Dr Bongani Ngqulunga added that “the President has urged the NPA and other institutions concerned to conduct the matter with the necessary dignity and respect.”

President Zuma is quoted as saying “Our society is anchored on the rule of law as well as fair and just judicial processes. In this regard, Minister Gordhan is innocent until and unless proven otherwise by a court of law. This is a fundamental pillar of our constitutional democracy and the rule of law.”

Zuma, said Ngqulunga “reaffirmed his support for the Minister and added that the decision by the NPA came at the most sensitive time for the country when Minister Gordhan was successfully leading initiatives towards economic revival, bringing together business, government and labour in efforts to reignite growth so that jobs can be saved and created.”

Make of that what you must.

Meokgo Matuba, Secretary-General of the ANCWL said that “this matter has been subjected to courts of public opinions for far too long by those who chose to deal with the matter through media platforms than engage directly with law enforcement agencies. Utilising media as a platform to address the matter has created the “villains versus victims theories and angels versus devils tendencies’ in the matter”.

Matuba seems to have overlooked the small detail that it was the NPA who chose to announce its decision to charge Gordhan, Pillay and Magashula in a dramatic media conference before informing the “suspects” themselves.

The ANCWL said it welcomed remarks by Abrahams “which takes the public into confidence that there is no political interference on this matter. This remarks clearly indicates that there is no individual subjected to the manipulation of the law and law enforcement agencies to ulterior political motives. On the basis of this remarks by Advocate Abrahams, ANCWL therefore believes that any notion that seeks to claim political interference into this matter is nothing else but a tactic of the wedge drivers and their funders who are hell-bent in portraying the ANC Government administration under President Jacob Zuma as a government which is focused into political conspiracies than transforming the economy.”

Wedge drivers and their funders” in case you were wondering are, according to the ANCWL, “anti-transformation of the economy of SA. They want the majority of the citizens to continue languishing in dire poverty and their kids not affording access to higher education whilst the minority continue controlling the economy. They want the majority to remain economically excluded and being landless. These imperialists forces and their agents influences reactions of markets on the performance of Rand to create a perception that there are those who are above the law as summoning them to courts offends the markets.”

Make of that what you must, Take Two. DM

Photo: President Jacob Zuma at a meeting with business and labour leaders at the Union Buildings in Pretoria, 9 May 2016. (Photo: GCIS)

Gallery

Watch Pauli van Wyk’s Cat Play The Piano Here!

No, not really. But now that we have your attention, we wanted to tell you a little bit about what happened at SARS.

Tom Moyane and his cronies bequeathed South Africa with a R48-billion tax shortfall, as of February 2018. It's the only thing that grew under Moyane's tenure... the year before, the hole had been R30.7-billion. And to fund those shortfalls, you know who has to cough up? You - the South African taxpayer.

It was the sterling work of a team of investigative journalists, Scorpio’s Pauli van Wyk and Marianne Thamm along with our great friends at amaBhungane, that caused the SARS capturers to be finally flushed out of the system. Moyane, Makwakwa… the lot of them... gone.

But our job is not yet done. We need more readers to become Maverick Insiders, the friends who will help ensure that many more investigations will come. Contributions go directly towards growing our editorial team and ensuring that Daily Maverick and Scorpio have a sustainable future. We can’t rely on advertising and don't want to restrict access to only those who can afford a paywall subscription. Membership is about more than just contributing financially – it is about how we Defend Truth, together.

So, if you feel so inclined, and would like a way to support the cause, please join our community of Maverick Insiders.... you could view it as the opposite of a sin tax. And if you are already Maverick Insider, tell your mother, call a friend, whisper to your loved one, shout at your boss, write to a stranger, announce it on your social network. The battle for the future of South Africa is on, and you can be part of it.


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