/ 28 October 2016

Moyane’s own goal rebounds on NPA

Slander phobia: New Sars commissioner Tom Moyane wrote a circular to staff in which he admitted that he had ‘developed a deep unease about what the Sunday papers will bring’.
Slander phobia: New Sars commissioner Tom Moyane wrote a circular to staff in which he admitted that he had ‘developed a deep unease about what the Sunday papers will bring’.


Tax boss Tom Moyane has delivered a deadly blow to the prosecution of his arch-enemy, Minister of Finance Pravin Gordhan.

It is a prosecution Moyane himself initiated and one that in the past he promoted both publicly and covertly.

The latest revelations are perhaps the clearest indication yet that the case is politically motivated.

Many within and outside the governing ANC believe Moyane and Hawks boss Berning Ntlemeza are targeting Gordhan on President Jacob Zuma’s instructions, and Zuma will now have to try harder than ever to convince his detractors that he was not behind the agenda to prosecute Gordhan.

Although senior ANC and government leaders, including Deputy President Cyril Ramaphosa, have condemned the apparent abuse of state resources to target Gordhan, Zuma appears content that the finance minister has a case to answer.

This week he told Parliament: “This country adheres to the Constitution and the rule of law. No individual is given the right within that to interfere with independent processes and decisions of independent institutions. I think if this president was to interfere with any matter‚ either of chapter nine institutions or other institutions‚ then it would come closer to a banana republic.”

But now that it has emerged that a South African Revenue Service (Sars) lawyer disagreed with the way the Hawks and the NPA pursued the Gordhan matter, Zuma will have to explain why he still believes the case against the minister is not politically motivated.

The Mail & Guardian this week revealed that Sars’s lawyer, David Maphakela, regards the Gordhan prosecution as ethically dubious.

The drama that has since unfolded hinged on an email message sent by Maphakela to Moyane. It reads: “Kindly find this 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 NPA [National Prosecuting Authority] and the Hawks.”

It essentially suggests that Maphakela finds the prosecution of Gordhan and his colleagues questionable.

It was attached to a request from the NPA for a senior Sars employee, Vlok Symington, to answer questions related to a 2009 legal opinion he wrote concerning then-Sars deputy commissioner Ivan Pillay’s pension payout, which Gordhan and company are now being prosecuted for.

Much like the 1970s Watergate debacle in the United States, this scandal isn’t about Sars’s lawyer disagreeing with the way in which the NPA and Hawks conduct themselves. It is about the great cover-up that reveals Moyane’s hand in the matter and the lengths he will seemingly go to in order to get his way.

But, unlike Watergate, it has taken only 10 days for Moyane’s scheme to unravel, mostly thanks to his own doing.

But it is not the “hostage” blunder that casts Gordhan’s adversary from the frying pan into the fire, or even the suggestion that Moyane may have been updated all the time while one of his employees was subjected to apartheid-style interrogation tactics without any legal representation being afforded to him.

The greatest blow lies in the spotlight Moyane’s blunder shines on the NPA’s half-baked case. It based its charges against Gordhan, Pillay and Oupa Magashula, a former Sars commissioner, on a 2010 document written by Magashula, recommending the pension payout to Pillay.

Disturbingly, the NPA did not have the annexures accompanying this document, the Helen Suzman Foundation and Freedom Under Law revealed in court documents this week.

The NPA has now issued a subpoena to the chief executive officer of the Government Pensions Administration Agency, asking for documents and annexures to the Sars memorandum that form “the foundation of the charges against Finance Minister Pravin Gordhan”.

Symington’s legal opinion, dated March 17 2009, also seemed to slip past the NPA, despite it being part of Pillay’s 2014 labour case against Sars, which he won.

Helen Suzman Foundation legal researcher Pieter Olivier said: “Surely if the NPA had done their homework and read up on the case history, they would have known this.

“The NPA is clearly panicking and grasping at straws to assist their case. This matter dealt a deadly blow to it.”

This drama comes on the back of a week in which Gordhan, before starting his mid-term budget speech, received a standing ovation from MPs across the parliamentary divide, with ANC representatives proudly roaring: “A-N-C! A-N-C!” It seems as if Gordhan’s political support, not so long ago balancing on a knife’s edge, has gained traction.

Meanwhile, the NPA is in trouble and, with the help of Hawks and Sars, the hole it’s digging gets ever deeper.