David Maphakela refused to provide oral testimony and be examined on evidence submitted to the SARS Inquiry on Monday, arguing that he had already provided the commission with written submissions. This was despite being overruled and being ordered to do so by the Commissioner, Judge Robert Nugent.

Maphakela, through his representative adv. William Mokhari, said he would challenge Nugent’s ruling in court and would take his chances with a possible prosecution emanating from his unwillingness to testify when subpoenaed.

Maphakela is a lawyer for legal firm Mashiane, Moodley & Monama which rose to notoriety after Tom Moyane was appointed as Commissioner of SARS in September 2014. Moyane briefed the law firm on several themes relating to the imaginary “rogue unit” he cooked up along with the Sunday Times.

Maphakela’s testimony could have provided light into several areas. Perhaps the most important may be Makhapela’s perception of Moyane’s obsession with Pravin Gordhan. Maphakela was the lawyer who, two years ago, declined a brief from Moyane relating to the (now botched) prosecution of Gordhan because he considered it to be ethically dubious.

(Those were the days of the “27 Questions” the Hawks sent to Gordhan. The charges were withdrawn 20 days after Gordhan and co. were charged, at which event then prosecutions boss Shaun Abrahams made his infamous speech about “disrespecting the NPA”.)

At the time, Maphakela wrote an email to Moyane relaying a message from the Hawks. The message concerned the prosecution of Gordhan, and former SARS Commissioners Ivan Pillay and Oupa Magashula. The Hawks’ message and investigation related to the pension payout Gordhan agreed to pay Pillay. At the time, Maphakela relayed the message, saying:

“Kindly find this [Hawks message] 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 [National Prosecuting Authority] and the Hawks.”

Moyane tried to keep that message secret and sent his bodyguards and the Hawks to retrieve the email from senior SARS official, Vlok Symington. It ended badly – in an alleged hostage drama – and ensured that the email’s contents were widely publicised.

Maphakela was also responsible for a memorandum containing his opinion on the “rogue unit” saga. The memorandum was addressed to KPMG, who blatantly copied and pasted Mashiane Moodley & Monama’s recommendations into their own report. Along with spelling mistakes and grammatical errors.

On Monday Lebelo, SARS’ head of employee relations, accused Maphakela of defrauding SARS. The matter came about after the commission questioned Lebelo about a R750,000 legal bill he incurred in preparation to “clear his name” at the commission.

Lebelo alleged, under oath, that he only asked Makhapela to provide him with files in order to put him in a position to answer the commission’s questions. Maphakela’s invoice however shows an attempt to “link” former head of strategy Peter Richer with the imaginary “rogue unit” theme that Lebelo still clings to.

Lebelo further alleged that it was not the first time Maphakela’s invoices were questioned by him.

Lebelo related how Moyane asked Maphakela to read a book that connects the dots between the apartheid-era underground workings of operatives in Mozambique and South Africa. Moyane is mentioned in the book. Moyane wanted personal legal advice from Maphakela on whether he could legally challenge the book or its author, Lebelo testified. Maphakela billed SARS R120,000 for “reading the book”.

This prompted an astounded Judge Nugent to exclaim:

“How long is this book?!”

Moyane has, since the inception of the Commission of Inquiry into SARS, refused to testify. But Lebelo is known for tweaking his version of events as the moment demands it.

On Monday he testified that he had “never” testified before the Commission of Inquiry into SARS that he was there to clear his name. But evidence leader Advocate Carol Steinberg simply raised an eyebrow and read from the record of Lebelo’s previous testimony before the commission.

The record shows that Lebelo said several times that he was there to “clear his name” primarily because he was depicted as a Moyane henchman. Asked for an explanation about the discrepancy in his testimony, Lebelo said the context must be understood, and that he never attempted to say that clearing his name was the only or even the most important factor that prompted his testimony.

The inquiry continues. Its final report is due by the end of November. DM