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The Way We Are: The judge, the opposition leader, the t...

South Africa

South Africa, Politics

The Way We Are: The judge, the opposition leader, the tax settlement and the mysterious break-ins

In the early hours of the morning of Friday September 9, armed robbers broke into the Pretoria home of Judge Mabel Jansen. The men were very specific about what they wanted – court documents relating to the April 29 reserved judgment Jansen had made in respect of Julius Malema’s application to have SARS abide by a 2014 agreement to pay off his tax debt. On further reflection the robbery is just one twist in a curious, politically sensitive and fishy tale in which a cast of recurring characters seem to pop up. By MARIANNE THAMM.

This is a story with more questions than answers. We present here a timeline of events without attempting to reach any conclusions. This is just how things went down. If Sherlock Holmes is reading this, please WhatsApp us.

On April 22, 2012, two months after Julius Malema had been suspended as leader of the ANC Youth League, burglars broke into the Northcliff, Johannesburg home of his then legal representative, Advocate Muzi Sikhakhane.

At the time, Sikhakhane, who had represented Malema at his disciplinary hearing, noted, What they did is to open my drawers for documents – all my drawers in both my bedroom and my study. It’s clear to me it’s people who have not come to steal. They have come either to see me or do something to me. It’s too early for me to know exactly in what direction that foul play is.”

By then Malema had mightily pissed off President Jacob Zuma and the ANC. Not quite as much as he would infuriate Zuma and the ANC later on in Parliament as the Commander-in-Chief of the Economic Freedom Fighters (EFF), but we are running ahead of ourselves.

A month later, in May 2012, Advocate Sikhakhane would be tasked, along with colleague Gcina Malindi, by the ANC and President Jacob Zuma to prepare an urgent interdict against The Spear artist Brett Murray, the Goodman Gallery and City Press in an attempt to force the removal of the controversial painting from public view. He also acted at some point for former Crime Intelligence head Richard Mdluli.

In July 2013 SARS Commissioner Oupa Magashula resigned after he was caught – on a secret tape recording made by police agent Panganathan “Timmy” Marimuthu – offering a 28-year-old female chartered accountant a R700,000 a year job at SARS. Magashula resigned after Pravin Gordhan, who was finance minster at the time (his first round in the hot seat), called for a formal inquiry.

Fast forward to September 3, 2014 when Sikhakhane was appointed by the then SARS acting Commissioner, Ivan Pillay, to head a panel of inquiry into allegations against Group Executive Johann van Loggerenberg made in May 2014 by his former lover, attorney Belinda Walter, a double agent for the State Security Agency and British American Tobacco (BAT). Pillay then went on leave.

The love affair had made sensational headlines in the Sunday Times but the paper soon began publishing a series of reports ab0ut an apparent “rogue unit”. The stories alleged that Van Loggerenberg, who headed the then High Risk Investigation Unit (HRIU), was somehow linked to a clandestine and unauthorised unit which had, among other things, spied on politicians including Jacob Zuma and the NPA, and had run a brothel.

Pillay’s name was dragged into the saga as was that of Pravin Gordhan who was SARS Commissioner between 1999 and 2009. It was during his tenure that the investigative capacity of SARS was established, under several different names, to enable the revenue service to go after major tax dodgers, including big tobacco and known underworld figures.

Pillay made an extensive submission to the Sikhakhane panel which was included in the final report.

In September 2014, with just two days’ prior warning, President Jacob Zuma announced that Tom Moyane would be the new Commissioner of SARS. Moyane was appointed without the post ever being advertised and took up his position on October 1, 2014.

On October 12 the Sunday Times published a story claiming that the “rogue unit” had bugged the home of President Zuma. Moyane acted swiftly and in November 2014 began purging the entire SARS top executive based mostly on the reports about the “rogue unit” that had appeared in the Sunday Times. (The paper was later ordered by the Press Ombudsman to retract and apologise for these. The Press Ombud also found that it had breached several sections of the Press Code).

Once the SARS top executive was out of the way, Moyane re-briefed Advocate Sikhahkhane and extended the terms of reference of the panel of inquiry to include investigating allegations of the “rogue unit” and well as one other thing – the review all tax settlements concluded with taxpayers who had been under investigation since 2005.

Turns out though that not ALL settlements were going to by reviewed, only one: Julius Malema’s.

According to court documents, on November 25, 2014 – a month after Moyane stepped into the hot seat at SARS – the revenue service informed Malema that it no longer considered itself bound by the compromise agreement Malema had reached in May 2014. Malema had, warned SARS, until January 15 to make “representations”.

A little recap. In 2012 SARS had obtained a judgment confirming Malema’s outstanding tax debt of R16-million. According to court documents, Malema’s first request for a compromise was made on October 31, 2012. It was a request handled then by SARS Chief Officer of the Enforcement Division Gene Ravele. The investigator into Malema’s tax affairs at the time had been none other than Johann van Loggerenberg.

While grappling with SARS and his tax matters, Malema, in the meantime, launched the Economic Freedom Fighters on August 17, 2013.

On May 26, 2014, after much toing and froing, SARS and Malema entered into a compromise agreement in terms of the Tax Administration Act 28 of 2014. One of the consequences, had Malema been sequestrated, would have been that he would have been prevented from becoming a Member of Parliament.

By 1 December 2014, the applicant [Malema] had paid the amount of R7,259,953.79 to SARS (in tranches), as stipulated in the compromise agreement. The applicant thus complied fully with all his payment obligations in terms of the compromise agreement,” reads a court document.

Then, on March 2015, the same Moyane who had lodged a complaint with the Hawks against Pravin Gordhan, Pillay and Van Loggerenberg in relation to the rogue unit, suddenly contended that SARS was no longer bound by Malema’s earlier compromise agreement.

In April SARS accused Malema of lying and slapped him with an additional tax bill of R14-million as well as launching an application for sequestration.

Enter Judge Mabel Jansen.

On April 29 Judge Jansen delivered a judgment on the matter in the North Gauteng High Court. Jansen, an intellectual property law specialist, had been handed the politically sensitive case to deliberate on her own despite her request to have it heard with colleagues.

The files Jansen received in the matter ran to several thousand pages and were in disarray. In the end SARS did not get the result it wanted. Jansen ruled that the matter should go to trial. Later SARS reportedly refused to make the court papers available to the media saying that it could not “be seen to run a parallel process with the court”.

A week later, enter Gillian Schutte.

Schutte, activist, author, journalist and filmmaker, and Jansen had the year before engaged in a private conversation on Facebook. The initial contact between the two women was with regard to an elderly man who had been attacked by family members and who had been left destitute.

The women connected again in May 2015, a year before Jansen was to hear the Malema case, when Schutte shared a petition with regard to right-wing white South Africans who were demanding to be repatriated to Europe.

Then, on May 8, all hell broke loose when explosive racist comments that Jansen had made that “in their [black people] culture, a woman is there to pleasure them” were made public by Schutte. Jansen defended her comments, saying they had been “stated confidentially” and had been “taken out of context”, but the damage had been done. Schutte initiated a petition to have Jansen removed from the Bench.

Two days later Jansen was placed on special leave and slapped with a gagging order. The JSC Judicial Conduct Committee is now set to hear the matter in Pretoria on October 20.

Then in the early hours of the morning of Friday September 9, while Jansen was overseas with her daughter, armed men broke into her Pretoria home and held up her domestic worker at gunpoint. The robbers, who spoke English, held a gun to the woman’s head and demanded she tell them where the judge kept her court papers.

The men then made off with Jansen’s court computer as well as the files regarding Julius Malema’s personal tax matters.

Four days later, as President Jacob Zuma prepared to answer questions in Parliament, Malema staged a walkout, claiming Zuma had lost the constitutional right to respond “to anything as the President of South Africa”.

During a heated exchange with Speaker Baleka Mbete, Malema said “we are not allowing a criminal to speak to this House”.

If SARS has its way it is Malema who will be branded “criminal” for apparent “tax evasion”. It is evident that Malema and the EFF’s disruption of Parliament since the party managed to secure 25 seats in 2014 has enraged and infuriated the President as well as the ANC.

Having him neutralised by a sequestration order would suit many very nicely. He might be a democratically elected leader but “ve haf vays und means”.

The case of the mysterious break-ins, the reversal of the decision by SARS on the Malema settlement and perhaps even the well-timed release of Jansen’s racist comments, appear to all be a sideshow to the main event – President Jacob Zuma’s bid to remain in power regardless of several court decisions and scandalous allegations of gross corruption.

Like the rest of the country, everyone is now caught up in the crossfire of a very dirty and ruthless war where it appears there are no rules. At the end, all we can hope for to keep it all at bay is that thing we still call the law. DM

Photo: South Africa’s ruling African National Congress (ANC) president Jacob Zuma (R) hugs ANC Youth League president Julius Malema (L) after a signing ceremony committing parties to the electoral code of conduct in Midrand, north of Johannesburg, South Africa, 11 March 2009. EPA/JON HRUSA

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