Gordhan charges: ​‘Hawks held back Sars memo’

The Hawks seemingly withheld crucial information from state prosecutors that would have prevented fraud charges being laid against Finance Minister Pravin Gordhan.

This confession was apparently made last month by a member of the Hawks unit when they allegedly held senior Sars employee Vlok Symington hostage.

The unit was tasked with investigating Gordhan and his former colleagues at the South African Revenue Service (Sars).

Symington is expected to submit an affidavit to police watchdog Ipid detailing the exchange between him and the unit members present during the tense “hostage” drama.

Symington confirmed to the Mail & Guardian that a member of the Hawks team confessed to have had his memo “from the outset” of their investigation.

The memo contains legal advice from Symington to Gordhan (who was then finance minister), giving him the green light to pay the penalty for former deputy Sars commissioner Ivan Pillay’s early retirement and rehire Pillay on a contract basis.

When the charges against Gordhan, Pillay and former Sars head Oupa Magashula were announced in October, the rand buckled and the markets lost an estimated R50‑billion.

Symington’s revelation comes after National Prosecuting Authority (NPA) chief Shaun Abrahams revealed in a series of damaging letters how Hawks boss Mthandazo Berning Ntlemeza attempted to convince him not to withdraw the charges against Gordhan.

Abrahams withdrew the charges when the Symington document came to light because it showed there was no intent to act unlawfully.

The M&G understands the Hawks have intensified their efforts to probe what has been dubbed “the Sars wars” matter, casting their net wider so as to include several former high-ranking Sars managers and even former finance minister Trevor Manuel in an investigation that now spans more than a decade.

Available evidence seems to suggest that the Hawks are resolute about nailing Gordhan. With the pension “fraud” case now abandoned, the focus has now shifted to the disbanded Sars investigative unit that is accused of being “rogue”.

A Hawks source familiar with the investigation attested to his colleagues’ determination and said they want to “come out guns blazing with a much stronger case” against Gordhan. To achieve this:

• Sars’s anti-corruption unit has thrown its weight behind the Hawks, helping the unit with in-house information;

• Helgard Lombard, fingered as a point man in Project Sunday Evenings (an alleged covert spy operation conducted by the Sars investigative unit), has agreed to become a state witness;

• Other members of the Sars unit have also been put under pressure to turn state witness;

• Some members’ laptops used during their tenure and predating their employment at Sars have been audited; and

• Revised lists of questions have been sent to suspects and witnesses.

Gordhan’s lawyer said they had not received any new questions from the Hawks.

The questions are grammatically flawed and were not drafted on a Hawks letterhead. They focus on the Sars unit’s investigative methods, ignoring the content and focusing on operations. They ask about reporting lines, the relationship between the unit and its various managers, whether unit members had overseas bank accounts, how members were recruited into the unit and what their qualifications were.

Said a Sars official who is under investigation: “This is a clumsily laid landmine and I’m not about to step on it.”

Hawks spokesperson Hangwani Mulaudzi dismissed the claims, saying: “The Vlok matter, as far as I understand, is going through a judicial process so we don’t comment on pending matters. The rogue matter is your own opinion and we are on record … that we do not comment on operational matters.”

Reacting to questions from the M&G, Symington, through his lawyers, said that although he had been advised by “a member of the Hawks that they were in possession of his 2009 legal opinion from the outset, it would be imprudent for him to comment any further at this stage as he has already instituted a formal complaint against the conduct of the [Hawks] officials with Ipid”.

In a written response Sars said they were unable to comment on information they may have exchanged with law enforcement agencies.

It now seems that Abrahams may also have had his suspicions. He attached details of a damaging exchange between him and Ntlemeza to his affidavit submitted this week in the court application of Freedom Under Law and the Helen Suzman Foundation to get him suspended.

After Ntlemeza accused him of not acting in good faith, Abrahams wrote back: “Speaking of good faith, kindly advise me how did it come about that the memorandum of Mr Symington … only surfaced on 14 October 2016, when Freedom Under Law and the Helen Suzman Foundation wrote to me?”

In a press conference announcing the withdrawal of charges against Gordhan and the others, Abrahams said the NPA could not be blamed for not having evidence if the Hawks did not provide it to prosecutors.

The Symington opinion was attached to Pillay’s labour court proceedings against Sars in December 2014, as well as Commission for Conciliation, Mediation and Arbitration proceedings in January 2015 — both of which would be critical points of departure for any investigation into the fraud charges.

In an unguarded moment during a meeting with Symington at the Sars offices in Tshwane on October 18, a Hawks member allegedly admitted to being in possession of his memo from the start of the investigation.

Hawks members Brigadier Nyameka Xaba, Colonel H Maluleka, Lieutenant Colonel S Palaza and Captain M Sewele, as well as Moyane’s bodyguard Thabo Titi, attended the meeting. It is unclear who made the confession to Symington.

The prosecution was widely seen as an attempt to remove Gordhan from the treasury and loosen the guard on the government’s purse strings.

Following the altercation with the Hawks investigators, Symington opened a case of assault and kidnapping with Ipid against the four Hawks members whom he accused of holding him “hostage” last month.

The M&G revealed last month that the Hawks allegedly used physical force to retrieve a damning letter, written by a Sars lawyer and accidentally attached to questions about the memo, calling the Gordhan investigation and prosecution unethical.

The exchange of letters between Ntlemeza and Abrahams further reveals the Hawks’s determination to get Gordhan into the dock.

Ntlemeza accused Abrahams of acting contrary to the Constitution and said that the Hawks had “a strong case against the accused”.

Abrahams replied that he took “umbrage at the very serious allegations” and pointed out that only the NPA could decide whether to ­prosecute a suspect.

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Pauli van Wyk
Pauli van Wyk is a Scorpio investigative journalist. She writes about the justice cluster, state-owned companies, state politics and the inescapable collision course they're on. Pauli cut her teeth at Media24. She became a journo at Beeld, was trained by the amaBhungane Centre for Investigative Journalism and joined Mail & Guardian's investigative team before becoming a member of Scorpio.

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