Public Protector & ‘rogue unit’: How a big lie became a bigger and bigger lie
The narrative that a ‘rogue unit’ existed within SARS was dealt a mortal blow this week when three judges rubbished Public Protector Busisiwe Mkhwebane’s report that the unit spied on taxpayers and abused its power. They found that Mkhwebane’s conclusions were ‘the product of a wholly irrational process, bereft of any sound legal or factual basis’.
For six long years, the mythical and invented SARS “rogue unit”, created by three discredited Sunday Times journalists that attacked a small squad of SARS tax sleuths and accused them of criminality, was stuck like a noxious spider in the centre of the State Capture web.
For the beneficiaries, proponents and architects of the State Capture project, the “rogue unit” existed because it justified and explained why former SARS commissioner Tom Moyane got rid of his most senior executives and managers. SARS was thus not captured but merely cleaned up by Moyane.
It also gave the project’s protagonists a vehicle to attack the man they hate the most: Public Enterprises Minister Pravin Gordhan, President Cyril Ramaphosa’s closest confidante. Gordhan was SARS commissioner when the “rogue unit” was established in 2007.
For the antagonists of the project, the fake “rogue unit” narrative was a well-orchestrated plot by elements in the State Security Agency (SSA) and the tobacco industry to get rid of the revenue collector’s most dedicated and skilled executives and managers in order to torpedo sensitive tax investigations. In doing so, the protagonists stopped investigations against former president Jacob Zuma, his family and his friends. Among them were the Guptas and a host of tax evaders, money launderers and gangsters who had links with the first family and/or the ruling party.
The proponents of the project are not necessarily political allies but are bound by their hatred for Gordhan and their fear that a rejuvenated revenue service might expose their nefarious activities that include money laundering, tax evasion and smuggling.
Among these proponents are EFF leader Julius Malema, his side-kick Floyd Shivambu, Public Protector Busisiwe Mkhwebane, Sunday Independent investigations editor Piet Rampedi, prominent lawyers like Dali Mpofu and Muzi Sikhakhane, elements in the Ace Magashule faction of the ANC and a militia of trolls, bots, and Twitter armies.
The “rogue unit” narrative was given a mortal blow this week when three judges of the North Gauteng high court set aside Mkhwebane’s report that found there was a “rogue unit” and that it spied on taxpayers and abused its power.
Judges Selby Baqwa, Annali Basson and Leonie Windell found that Mkhwebane’s conclusions were based on “discredited reports and unsubstantiated facts”. Her report, the court held, “fails at every point” and the judges were satisfied “that the report is the product of a wholly irrational process, bereft of any sound legal or factual basis”.
Five high court judges – the above three plus Frank Kroon and Pieter Meyer – and an appeal court judge, Robert Nugent, have found that the high-risk investigations unit (HRIU) at SARS was lawfully established and was not “rogue”.
Yet, the proponents of the “rogue unit” narrative have managed to keep their fairy tale alive for six years despite convincing evidence that existed from day one that that there was no truth in the allegations.
How did they manage to do this?
The Nazi propaganda supremo Joseph Goebbels is credited with saying: “If you repeat a lie for long enough, it becomes a truth”.
This is exactly what Malema, Shivambu, Rampedi and their Twitter armies have accomplished. Liars can create an illusion of truth by repeating their falsehood often enough.
A recent study by Vanderbilt University in the United States showed that repetition has the power to make things sound more true — even when we know or suspect differently. Our minds are prey to the illusion of truth effect because our instinct is to use short-cuts in judging how plausible something is.
Propaganda as a tool to manipulate minds and public “narratives” depends on three primary elements. First, details do not matter; you make the story up and change it as time goes by. It just needs a hook. Like the label “rogue” (spelt “rouge” by Mkhwebane), which was invented by the Sunday Times investigations unit in October 2014.
Because we live in an age of information overload, people do not always focus on the details. And people forget. Propaganda relies on this. Every time the opportunity knocks, the message is reinvented and propagated as if it is something “new”.
The Sunday Times kicked off their ‘rogue unit’ series with a revelation that the HRIU had spied on Zuma and had gone rogue. A few weeks later, they claimed that the ‘rogue unit’ had a brothel. The investigations unit, with Rampedi as the lead writer, did not produce a shred of evidence for any of their allegations. But it did not matter. They had grabbed everyone’s attention.
Secondly, the propaganda needs to stay alive and get a life of its own. So, propagandists need to ensure the theme is repeated over and over, at any available chance and on any platform. Repeat, repeat, repeat. Any willing media platform, “alternative news”, social media, frivolous court cases, “press releases”, “announcements”, faux “civil groups”, bot armies, enemy’s enemies who themselves have their own problems, unregulated publications, and even unwitting or sloppy journalists — they will all do for the purpose.
Thirdly, it needs to be sensational. It needs intrigue, mystique, broad terms, vague claims and smatterings of fact to make it seem true. A bit of salaciousness always helps too. It must be so juicy that nobody can ignore it.
The Sunday Times kicked off their “rogue unit” series with a revelation that the HRIU had spied on Zuma and had gone rogue. A few weeks later, they claimed that the “rogue unit” had a brothel. The investigations unit, with Rampedi as the lead writer, did not produce a shred of evidence for any of their allegations. But it did not matter. They had grabbed everyone’s attention.
Public records that have been available for more than a decade show that the HRIU or “rogue unit” existed from March 2007 to October 2014. When it started, it consisted of 24 tax investigators. By the next year, it was reduced to 22 and by the following year to a mere seven and then six. Public records also tell us that it conducted 81 investigations throughout its time. The list was available to Mkhwebane and everyone else to see. There were no “rogue” operations.
The existence of the unit has been known since 2009. In the preceding year, a self-confessed rhino poacher and SSA informant, Mike Peega, was dismissed by SARS. Intent on revenge, Peega used the code name “Broken Arrow” and embarked on an orchestrated effort to sow havoc at SARS. Peega was funded by, among others, KZN businessman Mabheleni Ntuli, who was close to Zuma.
Peega’s targets were Gordhan, former acting commissioner Ivan Pillay and investigations executive Johann van Loggerenberg. He created a dossier, called “Operation Snowman”, about the HRIU (then known as the National Research Group) and claimed that it spied on politicians, conducted illegal surveillance on taxpayers, had acquired sophisticated spying equipment and underwent paramilitary training. The dossier was intended for Zuma, who Peega said was under threat from the unit, but soon found its way to the media.
SARS issued a detailed response to “Operation Snowman”, complete with a host of annexures, and discredited the allegations. It explained the nature of the unit with documents setting out its mandate in detail.
The “file” initially failed until in early 2010, Peega gave it to then ANC Youth League leader Julius Malema, who was himself in trouble for tax evasion. He did not hesitate to attack Gordhan and SARS in various interviews, claiming “Operation Snowman” was the product of state intelligence. It wasn’t true, but that little detail didn’t matter.
Malema, then a staunch Zuma man, went on the campaign trail and used the file to show that Zuma was being attacked by SARS. Friends of Zuma were now at risk, and SARS had a “covert unit” that sat behind all of this.
In return, SARS briefed the Presidency, the chairperson of the Standing Committee on Public Accounts (SCOPA), the law-enforcement agencies, the media, and Malema himself. The existence of the unit was not denied. It was explained. All accepted this and Peega’s dossier was relegated to the rubbish heap where it belonged.
Every year after that, Peega and a few others who had run-ins with SARS, tried to give the “file” life again, and every time, SARS simply put up their 2009 responses and evidence.
By 2014, Van Loggerenberg and his five investigations units were on to Zuma, his son Edward Zuma, his nephew Khulubuse Zuma, the Guptas, several businesspeople close to the first family and organised criminals who had ties with the ANC.
One of the key players in cracking open the doors at SARS was Pretoria attorney Belinda Walter, also agent 5332 at the SSA. She and her SSA handlers and Peega and his cronies converged and compared notes and dossiers. The discredited ‘Operation Snowman’ was the tool to get rid of the top executives at SARS.
SARS was also at loggerheads with major players in the tobacco industry. Edward Zuma was a director of one of the targeted tobacco companies while the director of another boasted that he frequently delivered brown envelopes to Nkandla. SARS targeted tobacco manufacturers for tax evasion, money laundering and fraud.
One of the key players in cracking open the doors at SARS was Pretoria attorney Belinda Walter, also agent 5332 at the SSA. She and her SSA handlers and Peega and his cronies converged and compared notes and dossiers. The discredited “Operation Snowman” was the tool to get rid of the top executives at SARS.
The state capturers used three platforms to achieve their goal. The first was the then Inspector-General of Intelligence (IGI), Adv Faith Radebe. The then Minister of State Security, David Mahlobo, instructed Radebe in August 2014 to investigate the Special Operations Unit (SOU) of the SSA in plotting against SARS.
This followed an exposé I wrote in that same month in City Press that Walter and other SOU “rogue agents” (the term I used) were plotting the removal of Pillay, Van Loggerenberg and others.
Radebe’s star witness was Michael Peega and she swallowed his dossier hook, line, and sinker. She cleared the SOU and the SSA of any wrongdoing and found that the real “rogue agents” were the HRIU at SARS and ordered that steps be taken against them.
Van Loggerenberg handed Radebe several files of evidence that implicated SSA agents in the capture of SARS. Radebe ignored the evidence and the files afterwards disappeared.
To execute steps two and three, Zuma crony Moyane – who knew nothing about tax – was in October 2014 parachuted into SARS as its new commissioner.
Barely a week later, Rampedi, Mzilikazi wa Afrika and Stephan Hofstatter published their first exposé in the Sunday Times. It accused the HRIU of spying on Zuma. The “rogue unit” narrative was born.
This was followed by the “Taxman’s rogue unit ran brothel” and 30 more articles implicating the HRIU in criminal activity. The Sunday Times did not provide a shred of evidence for any of their allegations, lied blatantly in their reporting and did not give any of their victims adequate time to respond.
Moyane, quick to grasp onto this, disbanded the entire SARS executive committee based on these articles. He and his henchmen at SARS muzzled every soul in the revenue collector capable of disproving the Sunday Times stories.
The third step was to use the Sikhakhane panel to give even more credence to the “rogue unit” narrative. Adv Muzi Sikhakhane — who is also Zuma’s lawyer — was appointed by acting commissioner Pillay (this was before the arrival of Moyane) to investigate allegations of impropriety at SARS. The “rogue unit” narrative did not exist then.
After Moyane’s arrival and the first appearance of the Sunday Times articles, Sikhakhane broadened his terms of reference to investigate the “rogue unit”. He said in his report that the HRIU was established unlawfully and engaged in criminal activity.
The report is riddled with mistakes. Many of the names of the “rogue agents” are misspelt, there are many factual mistakes and there are several contradictory findings. Despite both Pillay and Van Loggerenberg providing the panel with lengthy affidavits and evidence that showed that the HRIU was lawfully established and performed bona fide investigations, this was never considered.
But it didn’t matter. The Sikhakhane report was “leaked” to the Sunday Times as “confirmation” of their exposé. The “rogue unit” had gotten a life of its own.
Every tax evader in trouble with SARS jumped on the “rogue unit” narrative and claimed that they were investigated by this nefarious squad of tax sleuths. In most cases, the investigations against them ground to a halt.
But Moyane was not finished yet. First came the now-discredited Kroon advisory board chaired by retired judge Kroon, assisted by two conflicted characters: Moyane henchman Jonas Makwakwa (of cash-stuffing-ATM-at-midnight fame) and Adv Rudolf Mastenbroek (who was appointed by the Minister of Finance, who at the time was Nhlanhla Nene). Mastenbroek has allegedly attempted to sell fake stories to the Sunday Times about Gordhan and others since 2013 while still at SARS. (*See Mastenbroek response below)
Rampedi and the EFF were blatantly dishonest in their reactions. Gordhan has never denied the existence of the unit, which was the HRIU. What he has denied was that it had gone ‘rogue’. The existence of the unit has been in the public domain since 2009. But this little detail does not matter. Propaganda will ignore this, regardless.
In 2018, Kroon testified at the Nugent Commission of Inquiry and retracted his report that confirmed the findings of Sikhakhane. He said under oath that the unit was lawfully established and that it would be beneficial for an institution like SARS to re-establish the unit.
In 2019, Kroon apologised to all the unit members and their families in writing via the Judicial Service Commission. It is a small detail, but again, the propagandists continue to ignore this and still maintain otherwise.
Then there was the disastrous KPMG mess in 2015. The audit firm also found that the unit was illegal but in 2017 withdrew their conclusions, findings and legal opinions. Why? Because it was not theirs. It was prescribed to them by Moyane’s lawyers.
By 2018 they refunded SARS their full R23 million fee for their work. KPMG made apology after apology, culminating in admissions in Parliament about how “unprofessional” and “lazy” the author of the report was. Several executives were fired.
By 2020, the newly appointed KPMG chairperson would finally admit KPMG caused damage to the unit members, apologised and undertook to “contribute towards reparations”. Soon after, SARS notified both KPMG and the Sikhakhane panel members that no reliance was to be placed on their reports “for any purpose”, following an extensive review process.
In 2019, the IGI Adv Radebe’s intelligence report was leaked to the EFF and the Public Protector. They used Radebe’s findings to reignite the “rogue unit” propaganda. Van Loggerenberg challenged the report. Neither the SSA nor the IGI was able to defend it and it was earlier this year set aside by the high court.
By this time, the Sunday Times had also withdrawn all its reporting and apologised to Pillay, Van Loggerenberg and others. The newspaper admitted that it was used to capture state organs and get rid of people.
But for the proponents of the “rogue unit” narrative, it did not matter. The Sikhakhane and Mkhwebane reports kept it alive. The “rogue unit” propaganda was alive and well.
Just last week, the story escalated with the cross-examination of Gordhan by Dali Mpofu at the Judicial Commission of Inquiry into Allegations of State Capture. Gordhan remains the primary target and by implication, the State Capture commission and the Ramaphosa presidency.
After hours of bickering between Gordhan and Mpofu, who appeared on behalf of Moyane, the advocate wanted to know: “The unit did exist, let’s put that to bed once and for all. Correct?”
“Yes”, Gordhan replied.
This was like manna from heaven for the protagonists. They suddenly claimed that after six years and many denials, Gordan had now finally admitted that the unit existed.
“Rogue unit denialists, where to now?” Rampedi tweeted while the EFF demanded that Ramaphosa immediately fire Gordhan.
Rampedi and the EFF were blatantly dishonest in their reactions. Gordhan has never denied the existence of the unit, which was the HRIU. What he has denied was that it had gone “rogue”. The existence of the unit has been in the public domain since 2009. But this little detail does not matter. Propaganda will ignore this, regardless.
Propaganda has a deadly side-effect. It distracts. It keeps attention on one issue only. Which means, nowhere does anybody ask what has happened to the claims of the unit having broken into the Forest Town home of Zuma, bugging Zuma, running a brothel, hundreds of millions in secret funds and interceptions of emails and communications of taxpayers. We all seem to have forgotten about this.
Malema, Rampedi and their cronies are clutching at straws to keep the “rogue unit” narrative alive. The full bench of the Gauteng north high court did not just set Mkhwebane’s report aside, but said the following of Sikhakhane’s findings: “The authors deviated from their terms of reference and made factual findings about allegations concerning the so-called rogue unit without affording any opportunity to those implicated in the report.”
The judges concluded: “But, in addition to the fact that the Sikhakhane report has been widely discredited, we can likewise find no factual or legal basis upon which it can be concluded that the establishment of the unit was unlawful.”
The full bench did not find any evidence of any wrongdoing by the HRIU. It says: “The Sikhakhane report had dire consequences not only for existing activities at SARS, but also for those officials implicated by the report.”
It also had dire consequences for 56 million South Africans, many who rely on the revenue service to fill the fiscus to ensure the pay-out of 17 million social welfare grants every month. SARS had a shortfall of R98-billion during Moyane’s three-year stint and will suffer from the consequences of State Capture for many years to come.
The lies of Malema, Shivambu, Mkhwebane and Rampedi have severely damaged the country. Facts matter and should matter. Repeating baseless claims without bothering to check if they are true helps to create a world where lies and truth are easier to confuse.
Yet, there is little chance that these “rogue unit” crusaders will accept their defeat. Said Rampedi in a tweet after the judgment: “The North Gauteng High Court judgment on PP #RogueUnit report has put to bed the fallacy that the SA judiciary is independent, all judges consider & interpret the law only, & that all journalists are independent & report without favour & prejudice.” DM
Update: * Minor amendments were made to this Op-Ed on Wednesday afternoon, 9 December 2020.
Rudolf Mastenbroek contacted Daily Maverick by email, denying that he attempted to sell fake stories to the Sunday Times. “I emphatically deny the allegation. If you had asked me for comment before the publication of the story, which you didn’t do, I would have told you so. In the process, you are guilty of what the article complains about, namely that if you repeat a hateful and untrue little story often enough, it acquires the gloss of truth.”
Mastenbroek sent a follow-up response as follows:
- I have noted the subsequently inserted amendments to the story that was initially published yesterday.
- I have also noted that the amended article now contains a link to an affidavit, which supposedly corroborates the now re-phrased claim that I “attempted to sell fake stories to the Sunday Times about Gordhan since 2013 while still at SARS.”
- Apart from repeating the denial, I point to the following reasons why putting up the affidavit does not assist in corroborating the claim which I deny:
3.1. The affidavit does not suggest that I attempted to “sell” any story to anyone.
3.2. The affidavit does not mention the name “Gordhan.”
3.3. Most importantly, the affidavit does not suggest that anything that I might have told Joubert was “fake.”
- Please amend your story again as a matter of urgency to address the above shortcomings.
- Note that all of my rights are reserved.