The prosecution of Minister of Finance Pravin Gordhan is ethically dubious, a South African Revenue Service lawyer said in an email exchange that set off an explosive series of events in the past 10 days, including an alleged hostage drama at a Sars office in Pretoria.
Four Hawks officials are accused of using physical force and “apartheid-style tactics” to retrieve a printout of the damning email from a senior Sars employee, Vlok Symington.
Among them was Brigadier Nyameka Xaba, the Hawks’s lead investigator in the case against Gordhan. Symington was allegedly left with bruises on his forearms and hands from the altercation.
- READ MORE: The case against the NPA’s shoddy work
Dramatic video and audio recordings suggest that Sars commissioner Tom Moyane might have been consulted and updated during the alleged hostage drama.
The recordings were made by Symington and handed over, with other evidence, to the Independent Police Investigative Directorate (Ipid), which is now investigating the matter.
The Mail & Guardian was still waiting for comment from all parties at the time of going to press.
This bizarre twist in the Gordhan saga was triggered by an email Moyane seemingly erroneously shared last week.
The chain of events began with Torie Pretorius, the lead prosecutor targeting Gordhan, emailing Xaba, asking him to obtain a statement from Symington. That happened just before 5pm on October 17. Pretorius attached a list of questions for Symington to answer.
They relate to a legal opinion Symington wrote in 2009 about whether Sars was permitted to pay out former Sars deputy commissioner Ivan Pillay’s pension fund and rehire Pillay on a contract basis.
Symington’s legal opinion stated that there was “no technicality” that prevented Sars from reappointing Pillay and that he was “entitled” to request Gordhan [minister of finance at the time, during his first stint] to waive the early retirement penalty.
Charges of fraud recently brought against Gordhan, Pillay and former Sars commissioner Oupa Magashula relate to this pension payout.
A few minutes after receiving the email from Pretorius, at 5.07pm, Xaba asked Sars’s lawyer, David Maphakela from law firm Mashiane, Moodley and Monama, to deal with the NPA’s request as a “matter of urgency”.
Maphakela then emailed Moyane the following damning message: “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 and the Hawks.”
This essentially says Sars’s own lawyer did not agree with the prosecution of Gordhan and his co-accused.
It set off the chain of events that led to the alleged hostage incident.
By Moyane’s own doing, this message has now found its way into the public domain.
It seems that at some point after the email exchange, Moyane handed a hard copy of Pretorius’s questions, along with the entire email trail, to senior Sars employee Kosie Louw, to whom Symington reports. Louw asked Symington to answer Pretorius’s questions.
At about 10am on Tuesday October 18, Moyane’s bodyguard, Thabo Titi, and the Hawks, including Xaba, met Symington.
The meeting seems to have been congenial, with the Hawks explaining what they would need from him. Why Titi accompanied the investigators is not clear.
They then left Symington and walked across the road to Lehae la Sars, the main building and location of Moyane’s office.
But when Xaba, Titi and the Hawks returned at 1pm, matters no longer appeared to be so pleasant. From a recording of the events, Titi appeared to be blocking Symington from leaving the boardroom, as well as preventing Sars security officials and Symington’s personal assistant from entering.
In one recording, Titi can be heard telephonically consulting a person whom he addressed as “commissioner” and “sir”, while ordering Sars security to stay outside.
Insiders said Titi was speaking to Moyane.
The Hawks can be heard demanding that Symington hand over the printout of the email and questions.
At some point, a clearly agitated and intimidated Symington pushed the record button on his phone. He can be heard repeatedly shouting that he was “being held against my will” and “I’m being held hostage”.
The recording seemed to have been done in secret – until Symington is heard warning Titi that he was filming them preventing him from leaving the boardroom.
Symington made at least three phone calls – two to his personal assistant and one to 10111. He is heard asking his PA to call the building’s security guards because he was being held hostage and “against my will”. The second time he called his PA it was to ask what was delaying the guards from responding.
Symington seemingly got no joy from 10111. The operator asked whether Symington knew the people holding him hostage and why they were allowing him to phone. She also struggled to grasp where Symington was – in Sars’s Khanyisa building in Brooklyn, Pretoria.
From the recordings, it is clear that between 10am and 1pm on Tuesday October 18 the Hawks’s attention suddenly shifted from getting Symington to answer the NPA’s questions urgently to their panicked attempts to get him to return the email printout.
Symington can be heard expressing his surprise by the change in the Hawks’s tone.
Sars insiders say this was after the Hawks left Symington for the building where Moyane’s office is.
Xaba appeared determined about retrieving the document that contained the email trail and, crucially, the Sars lawyer’s comment sent to Moyane.
He can be heard saying the document had been given to Symington “by mistake”.
It appears from the recordings that Xaba wanted to trade the document for another copy of the NPA’s questions – without the message from the Sars lawyer.
Symington bluntly refused.
During the recorded conversation, it is clear that he had caught on to why Titi and the Hawks so desperately wanted the document back.
“It must be about the attachments,” he is heard saying to Xaba, a reference to the email with its damning message from the lawyer.
At one stage, Louw and Symington’s colleagues, Eric Smith and Mark Kingon, joined the unravelling meeting.
Louw asked the Hawks to leave the room and give Symington’s colleagues “five minutes” alone with him. They’re heard trying to placate him and apparently to coax him into giving the document to the Hawks.
Symington did not budge.
It is at this time – about an hour after he first mentioned being held “against my will” – that Symington lost his patience.
“The commissioner’s bodyguard is holding me hostage,” Symington is heard shouting.
The bodyguard then seems to have retreated but, when Symington left the room, all hell broke loose.
In the recording shouts can clearly be heard. An insider said it was the moment “the Hawks pounced on him and roughed him up a bit, while taking the document by force at the moment Symington exited the room”.
Symington’s repeated shouts of “he stole the document” intermingle with the soothing voices of his colleagues, saying: “Vlok, kalmeer nou” [Vlok, calm down now].
The desperation displayed by the Hawks, with the seemingly tacit consent of Moyane, is the clearest show yet of the lengths some powerful organs of state are willing to go to prosecute Gordhan and his co-accused.
It further confirms, from within the prosecutorial camp, what legal experts have said – that the case against the finance minister is fatally flawed.
It also displays the increasingly desperate lengths they are willing to go to execute their plan.
Violence and intimidation – tactics reminiscent of the apartheid-era state of emergency – seem to be back in vogue.
‘It’s unacceptable if it’s true’
In Parliament on Wednesday, Finance Minister Pravin Gordhan was quizzed about whether he had knowledge of the alleged South African Revenue Service “hostage drama”, before the Mail & Guardian broke the story.
“The incident at Sars, I heard whispers about it, to be frank. I have no formal report yet. I believe there’s something on the wires this morning, but I haven’t had a chance to look at it,” Gordhan said. “I will ask Mr [Tom] Moyane for an explanation as soon as I get a chance. If this it true, it’s unacceptable behaviour. But let’s get the facts first and we will take it from there.”
Sars and the Hawks did not reply to questions from the M&G. They were asked if Moyane had ordered the Hawks to retrieve the document from Vlok Symington and, if so, under what authority.
The National Prosecuting Authority said its head, Shaun Abrahams, had considered representations from Oupa Magashula and Ivan Pillay, and had “directed that further investigations be conducted to clarify some issues. The review process is underway; please give the NDPP [national director of public prosecutions] space to apply his mind to the matter in a judicious manner.”