Sars vs Lackay: Media victory for openness and transparency
In a groundbreaking ruling, the media has been granted access to the Commission for Conciliation, Mediation and Arbitration (CCMA) arbitration hearing between the South African Revenue Service (Sars) and its former spokesperson, Adrian Lackay.
In the ruling, handed down on Friday, CCMA national senior commissioner Cameron Morajane noted that the “media is not only the life blood and soul of our democracy, it is the vanguard of all institutions of statutory and constitutional creation”.
Morajane’s decision followed an application for access to the arbitration hearing by Media24 and the M&G Centre for Investigative Journalism (amaBhungane) on October 9.
Following 11 years of service, Lackay resigned from Sars in February this year. He approached the CCMA to have his resignation declared a constructive dismissal that stemmed from conflict with the newly appointed Sars commissioner, Tom Moyane.
Lackay contends that he was sidelined and ultimately constructively dismissed as a result of his opposition to certain actions taken by Moyane.
The actions to which Lackay objected included the alleged purge by Moyane of a number of senior officials of Sars, based on allegations they had permitted a so-called rogue spy unit to operate within Sars.
In a letter to Parliament, Lackay alleged that the true circumstances surrounding the unit were suppressed in order to facilitate this purge and that, in addition, he was caused by Moyane “to issue statements to the media that contained false and incorrect information”. He pointed out that various findings to the effect that Sars had carried out illegal intelligence gathering had never been subjected to cross-examination before a neutral arbiter.
The CCMA hearing, at which Moyane was expected to be the main witness against Lackay, would have provided the first opportunity where the allegations and counter-allegations regarding the destabilisation of Sars would be canvassed in an open legal setting.
But reporters were barred from the preliminary hearing in September. AmaBhungane and Media 24 then applied for access – amaBhungane applying for access on behalf of all media.
As it revolves around Sars’s alleged rogue spy unit, the arbitration is a matter of significant public interest.
In their submission, amaBhungane and Media24 argued that unless the media was allowed to play “its crucial role of reporting on issues and disseminating information, the majority of citizens would simply be unable to participate meaningfully in the public life of society”.
Lackay did not oppose the media application, but Sars lodged strong objections and dismissed the public interest argument. It argued that the CCMA did not have jurisdiction to “make a determination” on whether the media coud have access or not.
It further argued that the confidentiality of taxpayer information, which might be referred to in the hearing, imposed a duty of secrecy on the arbitration. In particular, Sars raised its concerns about the possibility of further “unnecessary” scrutiny of the rogue spy unit if the media attended the hearing.
Morajane found that Sars’s objections held little weight when balanced against the fundamental right to freedom of expression and the constitutional imperative of open justice.
He noted that he was unable to make a declaratory order because the commission is still in the “process of developing rules and guidelines on media access to its arbitration hearings”.
The arbitration will be heard later this month.
AmaBhungane engages in advocacy under its mandate to help secure the information rights investigative journalists need to do their work.