My role in sorry saga of Sars ‘rogue unit’
As the Nugent inquiry unveils the apparent breakdown of tax administration under commissioner Tom Moyane, the issue of the South African Revenue Service’s so-called ‘rogue unit’ has again taken centre stage. A key name in this saga has been that of the former head of Sars’ criminal investigations, Rudolf Mastenbroek. He gave his side of the story in a statement to the Mail & Guardian.
I wish to respond to certain recently recirculated false news reports concerning my role in the so-called South African Revenue Service’s (Sars’s) “rogue unit” saga.
The central fallacy is that I was the source of the Sunday Times “rogue unit” reports.
Pearlie Joubert herself has confirmed that this was not the case.
(Editor’s note: Former senior reporter Joubert resigned in protest over the Sunday Times’s handling of the reports.)
The following is an excerpt of a finding against Joubert by the media ombud: “Joubert specifically denies that she either stated or implied that Mr Rudolf Mastenbroek, a former Sars employee, had been the source for the Sunday Times’s ‘rogue unit’ stories.”
On being labelled the ‘source’
I also did not “leak” the story to the then editor of the Sunday Times, who was my ex-wife.
The first time I became aware of the existence of the “unit” was when I read about it in the Sunday Times. During 2015, the owners of the newspaper commissioned attorneys Bell Dewar to investigate, among others, the claim that I was the source of the stories. The investigation found there was no basis to the allegation.
The lead journalist on the story was Piet Rampedi. The investigation by Bell Dewar found, correctly, that I had never met Rampedi or had any communication with him on any subject.
I did not apply to be appointed to the statutory advisory committee established by then finance minister Nhlanhla Nene in March 2015. Shortly before my appointment, I was approached by an intermediary acting on behalf of then deputy minister Mcebisi Jonas, inquiring about my availability. It was made clear to me that the first and primary purpose of the advisory committee would be to render advice to the minister on the media controversy surrounding the “rogue unit”.
As a former head of Sars criminal investigations, I had definite views on the manner in which Sars ought to conduct itself in the interface with law enforcement and intelligence. One of my views was (and remains) that Sars is a civilian revenue agency and not a law enforcement institution. It should not dabble in matters that fall within the remit of the police or intelligence community.
During my stint as Sars criminal investigation head, I reported to Ivan Pillay. In certain critical respects, I held differing views from him on how to perform my duties. Moreover, we differed politically. Pillay was an open supporter of the closing down of the Scorpions. I, on the other hand, had recently come from the National Prosecuting Authority, where, among other things, I was part of the process of defending Bulelani Ngcuka (director of public prosecutions) from the false allegations that he was an apartheid spy. Suffice it to say that our differing views did not endear me to Pillay. These differences were part of the reason I left Sars in 2013.
I made all of this abundantly clear to Jonas’s intermediary when he first interviewed me in February 2015 for the Kroon committee. I was nevertheless informed shortly thereafter that the minister wished me to serve on the advisory committee.
Before finally accepting the appointment, I took advice from one of the most senior silks at the Johannesburg Bar, who advised me there would be no legal objection to the appointment. The only function of the committee was to render advice, which the minister could either accept or not.
The first time I met Sars commissioner Tom Moyane was in Nene’s boardroom in Cape Town on the date that the Cabinet approved the membership of the committee. At the time that the committee was appointed, in March 2015, Johann van Loggerenberg had already tendered his resignation to Sars.
Investigating the ‘rogue unit’
At that time, the three-member Sikhakhane committee, appointed by Pillay, had already released its findings and recommendations. One of the recommendations was to institute a forensic investigation into the establishment of the “rogue unit”.
Moyane accordingly appointed KPMG to conduct the investigation. I did not direct or participate in the investigation. On the instruction of the chairperson of the committee, I and another member were asked to fact-check a sample of the KPMG report.
The Kroon committee’s finding was based on the Sikhakhane report and the unfolding KPMG forensic audit. Rightly or wrongly, the committee did not consider it necessary to conduct further investigations. We had no reason to question the integrity of the other processes.
The wording of the April 2015 statement by the advisory committee, that in its view the establishment of the unit was unlawful, was agreed upon by all members of the committee.
After the growing controversy surrounding the unit, I tendered my resignation to retired Judge Frank Kroon and Jonas. Both of them asked me to stay on, which I did, until early the next year, when the one-year appointment expired.
Falling-out with Gordhan
This story is complicated not only by differing political views and legal opinions, but also by the personal relations that are entwined in it. One of those is my relationship with Pravin Gordhan and his wife, both of whom I got to know in 1994. I reported to Gordhan during the time that I was employed by the ANC during the Constitutional Assembly negotiations between 1995 and 1996.
I have never doubted Gordhan’s personal integrity. The suggestion that I spread rumours about him being corrupt is entirely baseless and malicious. I will always have the highest regard for both the personal sacrifice Gordhan made during the liberation struggle and for his outstanding work as Sars commissioner.
However, it does not serve our democracy to deify our leaders or to simplistically divide the world (and the ANC) into good and evil. There is a complex and grey area in between, and all of us make mistakes at some point in our lives.
As for me, one of the mistakes I made was to accept the appointment to the advisory committee. I say this not because I did anything wrong, unlawful or unethical. I simply should have known in advance that the terrain was too contested and too complex for me to have played a constructive role.
I have on more than one occasion attempted to communicate this in person to Gordhan but he has consistently refused to see me.
I was the subject of an “anonymous” complaint lodged with the Johannesburg Bar Council in 2016, which was leaked to the media. I was asked by the disciplinary committee of the Bar to provide a comprehensive statement on this very same subject matter. The complaint was found in February 2017 to have no merit.
The “rogue unit” issue has been the cause of much division. It has strained relationships, tarnished reputations and terminated careers, some rightly, some wrongly. Although the wound continues to fester, I look forward to its eventual healing and closure, not only for my own sake but also for everyone who has been affected by this.