On 18 October 2016, senior SARS executive Vlok Symington did not know the importance of the videos he recorded on his phone, but he knew something was fishy.

Earlier that day, his boss said Hawks officers would be visiting SARS and Symington, a legal adviser, needed to write an affidavit on his 2009 memo that approved former SARS commissioner Pravin Gordhan’s approval of his deputy Ivan Pillay’s early retirement.

Gordhan was finance minister in 2016, but had fallen out of favour with then-president Jacob Zuma, while the SARS commissioner at the time, Tom Moyane, clearly viewed Gordhan as an opponent.

The Hawks and NPA were looking into laying criminal charges against Gordhan for approving Pillay’s early retirement and for the so-called SARS “rogue unit” allegedly established during Gordhan’s tenure at the tax authority.

The alleged narrative was clear: Zuma was trying to appoint an ally to lead the Treasury; Gordhan was an obstacle to controlling the public purse; and the allegations against Gordhan relating to his time at SARS would be a convenient way to remove the obstinate minister.

On 18 October 2016, Symington’s boss gave him a list of questions from the Hawks and NPA, which they had sent after the Helen Suzman Foundation got wind of his 2009 memorandum clearing Pillay’s early retirement payment.

Officers from the Hawks arrived that morning to collect Symington’s affidavit, but when he went back to request more time at 1pm, he found them in Moyane’s boardroom.

A certain Thabo Titi blocked him from leaving. Symington didn’t know it at the time, but Titi was Moyane’s bodyguard. The Hawks officers, including Brigadier Nyameko Xaba, wanted to swap Symington’s copy of the questions with theirs.

They mentioned that the problem was that Symington’s copy included a number of emails. Symington, clearly concerned that he was not allowed to leave the boardroom, called 10111, building security and his secretary for help.

He filmed the saga, including the emails on the document, on his phone. Eventually, he saw an opportunity to leave the boardroom, but found the Hawks officers waiting outside.

“They then physically grabbed me in the hand, took those documents out of my hand and off they went,” Symington told the State Capture Commission on Wednesday 24 March 2021.

“Obviously they were trying to get the emails out of my hands. That’s why they wanted my copy of the letter, which happened to have those emails attached, and they would hand me back their letter where the emails were not attached.”

From the videos he recorded, Symington realised the emails included correspondence from David Maphakela, a partner at law firm Mashiane, Moodley and Monama, who was advising SARS on pursuing criminal charges against Gordhan and his colleagues.

Maphakela had written, “On ethical reasons, I cannot be involved in this one, as I hold a different view to the one pursued by the NPA and the Hawks.”

Symington said, “Not only was my memorandum not revealed officially by SARS to the Hawks or NPA, but this memorandum by Mr Maphakela confirming the lawfulness of Mr Pillay’s early retirement was also not made available apparently to the Hawks or NPA or both.”

Essentially, Symington uncovered that SARS had either failed to share Maphakela’s discomfort on pursuing the charges against Gordhan with the NPA and Hawks, or that the Hawks and NPA had seen it, but continued to investigate Gordhan regardless.

Symington later faced disciplinary action related to the saga, but he still remains a SARS employee. The NPA’s pursuit of charges against Gordhan was eventually abandoned and the minister and his colleagues have won multiple court cases in relation to the issue.

Moyane was due to testify on Thursday, but his lawyers at Mabuza Attorneys sent a doctor’s note to the commission saying he was ill and unable to appear.

Symington was testifying after former Bain & Company partner Athol Williams wrapped up his testimony regarding the management consultancy firm’s role in the restructuring of SARS, and former managing partner Vittorio Massone’s plans to benefit from his relationship with former president Jacob Zuma.

Evidence leader Alistair Franklin SC presented Williams with an email chain between Bain leaders highlighting that they knew Moyane would be appointed as SARS commissioner months before it happened. 

Like a number of other witnesses who have testified at the commission, Williams called on Zondo to increase support and protection for whistle-blowers.

Moyane participated in a Bain management training programme before he was in the running for the SARS job, and the company had prepared a plan for his first 100 days at the tax authority.

Shortly after Zuma appointed Moyane in 2014, SARS issued a request for proposals (RFP) that was sent to suitable companies rather than subjected to an open tender. Bain drafted the SARS RFP, which it later bid on and won. Williams described this as “improper”.

“It’s anti-competitive that one of the potential consultants, among others, is able to draft the rules of the game effectively for which they’re going to be judged,” he said.

That contract was due to last for six weeks, but SARS extended Bain’s contract multiple times and, according to Williams, was paid R164-million over 27 months. 

The commission heard how SARS employees’ concerns about the contract were ignored while the tax authority allegedly found ways to irregularly extend its deal with Bain.

Bain’s work at SARS allegedly helped justify Moyane’s efforts to weaken the institution’s investigative capacity.

Williams, who resigned months after he rejoined Bain in 2019 to help clean up its image, dismissed the company’s explanation of its work with SARS and its emphasis on Massone’s role.

“Bain continuously, in the media, internal communications, everywhere, seems to say to us, the world, the public, ‘There was a bad guy, did his bad things, we didn’t know about it but don’t worry, we got rid of him so now everything’s fine, nothing to see here’,” said Williams.

“To say that they arrived and they are shocked by what happened and they were unwitting participants, for me, just doesn’t accord with the evidence I’ve seen.”

Like a number of other witnesses who have testified at the commission, Williams called on Zondo to increase support and protection for whistle-blowers.

He said the 18 months since he left Bain and made the conscious choice to speak out was a “horrific experience”. He went from having a high-paying job as a part-time partner at Bain, and senior lecturer in business ethics at the University of Cape Town, to being unemployed.

“Today as I sit here, I’m unemployed and as I understand it I’m unemployable because it appears to me that corporate South Africa is uninterested in people with integrity,” he said.

Williams described an “era of the bully” in South Africa where leaders are able to get away with corruption because they’re not held accountable.

“Politicians bully the civil servants, civil servants bully the citizens, corporate leaders bully their employees and they can do this because there’s lack of accountability and no consequence,” Williams told Zondo.

“We must move from the era of the bully to the era of the brave.”

Earlier in the day, Zondo denied Bain’s application to release a summary of its affidavits to the commission to counter Williams’ testimony. The company has admitted to ethical flaws and committed to pay back its fees, but Williams said this was not sufficient while its global leaders continue to deny knowledge of its work in South Africa, and while the company had not released its investigation into the affair.

Former Eskom legal head Suzanne Daniels returned to testify on Wednesday evening, while Symington is due to finish his testimony on Thursday. Former SARS executive Johann van Loggerenberg is also scheduled to testify on Thursday. DM