Better times: Floyd Shivambu chats with Trevor Manuel and Pravin Gordhan outside Parliament in 2015. The EFF has since accused Gordhan of a number of crimes. (Lerato Maduna/Gallo Images/Beeld)
NEWS ANALYSIS
Allegations of a “rogue unit” at the South African Revenue Service (Sars) have been resurrected by the Economic Freedom Fighters (EFF) on a number of platforms as a weapon in the opposition party’s war on Public Enterprises Minister Pravin Gordhan.
The rogue unit keeps coming up — in the fight between Gordhan and EFF leaders before the equality court, in a complaint to the public protector by the EFF and even in the EFF’s rejection of newly appointed Sars commissioner Edward Kieswetter this week.
Although the appointment was generally welcomed, the EFF said the process to appoint him was “patently nepotistic and corrupt” and questioned his proximity to Trevor Manuel, who chaired the panel that interviewed candidates for the post. The Sars Act says that the responsibility to appoint a Sars commissioner rests with the president, and it does not prescribe a process.
The EFF said it also opposed Kieswetter’s appointment because he was a deputy commissioner under Gordhan when the alleged “rogue unit” was formed. The party warned that it would challenge the appointment in court.
The motivation for going after Gordhan can be found in the affidavits EFF leader Julius Malema and its deputy president Floyd Shivambu filed before the equality court. They were answering the hate speech case brought by Gordhan after Malema gave a fiery speech outside the state capture commission calling Gordhan a “dog of white monopoly capital” who “hates Africans”, and Shivambu authored a blog post accusing Gordhan of running a cabal and operating a “parallel state”.
The EFF leaders’ affidavits — signed in January 2019 — have, as yet, not been reported in the press. In them, Malema and Shivambu defend their statements as legitimate political expression protected by the Constitution. They say that Gordhan is a politician “at the very highest level of government” so “criticism of him, even of the harshest kind, is both protected and permissible in a democracy like South Africa”.
They say his case against them is meant to “shut down and silence” them and proves that he is a “political bully”.
Shivambu sets out what the EFF believes are Gordhan’s true intentions: “He has created a ‘parallel state’ to the extent that those persons belonging to his faction are strategically deployed to key positions of power and influence, and who then use their occupancy of such office to pursue the same ends.”
Shivambu says the parallel state machinery has “its own investigative and prosecution arm” and uses “dirty tricks” such as leaking confidential legal information about opponents and engaging in smears.
The purpose, say Malema and Shivambu, is self-aggrandisement; and to serve another state capture project.
“It is our belief that white people … have long since captured the state to meet their ends and support their own wealth and power accumulation,” says Malema.
“The Guptas were nothing other than rivals to white interests in the continued capture of the state,” he continues.
Gordhan’s attorney, Tebogo Malatji, of MalatjiKanyane Attorneys, said Gordhan would be filing a replying affidavit to Shivambu and Malema once a judge had been allocated to hear the case.
The EFF leaders do not provide evidence in the affidavids for Gordhan’s links to white monopoly capital but they say their evidence for the “parallel state” is the rogue unit.
The rogue unit allegations have been investigated by several panels, including one led by senior counsel Muzi Sikhakhane, which has been the subject of much debate, and one led by retired Judge Frank Kroon, who last year withdrew his 2015 findings that the unit was unlawfully established.
But now Shivambu has thrown into the public domain a still classified 2014 report on the unit by the late inspector general of intelligence (IGI), Faith Radebe, by attaching it to his court papers — thus making it public.
T
he report makes damning findings about the unit (the High Risk Investigation Unit)and its main protagonists. It also repeats many of the allegations contained in a series of discredited reports in the Sunday Times, for example, that the unit bugged the house of former president Jacob Zuma and was used to fight factional political battles inside the ANC.
Sikhakhane’s report made, on the unit specifically, just one finding of law: that it was unlawfully established because Sars did not have the legal powers to gather intelligence.
Sikhakhane’s findings on the facts of the unit, in particular, whether it had the capacity to intercept communications and whether it did do so, were all prima facie and required further investigation.
In an affidavit to the Zondo commission on state capture, Gordhan says that the rogue unit allegations had been “thoroughly examined by the Nugent commission” — the commission into tax administration and governance at Sars, chaired by retired appeal court Judge Robert Nugent.
Sikhakhane’s interpretation of the law was rejected by Nugent. “While the National Strategic Intelligence Act prohibits the covert gathering of intelligence, that applies to intelligence concerning threats to the safety of the state, which hardly applies to intelligence relevant to collecting tax.”
But Nugent refused to allow his commission to be sidetracked into a battle over rogue unit factual
allegations, and left open the possibility of unlawful conduct. He said: “I have not yet found why the creation and existence of the unit was said to have been unlawful,
which is how it was consistently and uncritically depicted. It might be that some of the activities of one or more of its six members was unlawful, but that is something else.”
The IGI’s view of the law agreed with Sikhakhane and disagreed with Nugent, with Radebe saying that Sars is not mandated to create its own intelligence collection agency. And, unlike Sikhakhane, the IGI report makes definite, factual findings of unlawful conduct by the unit, finding specifically that “Sars had an interception and monitoring of communications capability which went beyond targeting tax offenders but was utilised for political purposes”.
Responding to these allegations back in October 2014, then acting Sars head Ivan Pillay said the unit had not “ever purchased, procured or utilised any equipment that could have been used for ‘covert’ collection of intelligence”. Instead, he said, the allegations were being peddled by former disgruntled Sars employees, including Michael Peega, who was fired from Sars after he was bust for alleged rhino poaching.
The IGI team interviewed a number of members of the unit, who all said there was no interception — except for Peega. The now infamous “Project Snowman” dossier, authored by Peega, is attached to the IGI report. The report says his version is corroborated by Belinda Walter — a State Security Agency informant and a former lover of Johann van Loggerenberg, who headed up the unit.
The initial purpose of the IGI investigation was to look into allegations that in fact it was the State Security Agency that was acting unlawfully. Van Loggerenberg told the Mail & Guardian that, when he was interviewed by Radebe’s legal adviser Jay Govender, he had, “in absolute good faith”, given her 60 names of people he thought “would be of assistance” to the investigation.
“Specifically, in this regard, amongst others, I implicated the very persons whom the OIGI [office of the IGI] appears to have uncritically relied on, in particular, certain law enforcement officials and intelligence operatives associated with a former multiagency ‘Tobacco Task Team’ and their private associates.”
Van Loggerenberg said he was not given an opportunity to answer to the allegations made by those interviewed in the report. “I emphatically deny all and every adverse comment and allegation against me.”
The IGI team did not interview Gordhan. But the report recommended that criminal charges be investigated, including against him, Pillay and Van Loggerenberg. The National Prosecuting Authority in 2015 confirmed that these charges were being investigated.
But, in the end, Gordhan has never been charged for rogue unit-connected allegations. Instead he was charged for a pension payout to Pillay but the charges were dropped less than a month later. Pillay and Van Loggerenberg have been charged for bugging the offices of the Scorpions in 2007 and the case is ongoing. No charges have been laid for bugging Zuma.
Public protector Busisiwe Mkhwebane, acting on the EFF’s complaint about the unit, has asked former Sars officials to co-operate with her investigation into the unit. She clashed with State Security Minister Dipuo Letsatsi-Duba over the IGI’s report. Mkhwebane wants Letsatsi-Duba to provide her with a declassified version of the report to use in her investigation of Gordhan.
Maharaj: Cabal report is a ‘distortion of reality’
Economic Freedom Fighters deputy president Floyd Shivambu, in the equality court, attaches a document, Report of the Commission on the Cabal, dated March 1990. The report was obtained from the [Padraig] O’Malley Archive — the author of the biography of liberation leader and ANC veteran Mac Maharaj.
Shivambu says the report identifies Public Enterprises Minister Pravin Gordhan — during the 1980s Mass Democratic Movement — as a member of a “cabal”, which “manipulates strategy, lacks democratic practices and stifles free and open debate” and that it targeted black [African] members.
Shivambu says: “It appears that Mr Maharaj drafted the report.”
Speaking to the Mail & Guardian this week, Maharaj said he had “no knowledge of, or participation in, the preparation of this so-called report”, adding that it was a “very strange document to [appear] in March 1990 — just after the ANC, MK [the movement’s armed wing, Umkhonto weSizwe] and SACP [South African Communist Party] were unbanned”.
“Insofar as this document talks of any group having differences of opinion in the movement: we came across, over the history of our struggle, many issues of differences regarding tactical matters amongst comrades from the day I joined the movement in 1953,” said Maharaj.
“It has been a tradition of the movement to treat such differences as legitimate and a healthy phenomenon, and to resolve them by discussion and not to make judgments from above or issue condemnations.
“PG [Pravin Gordhan], and many of the names, irrespective of their race, that appear in the document, were active comrades in different arms of the struggle. From time to time, there were differences of view and all of them were part of the process of finding solutions, guided by the unity of the masses of our people.
“At times, these differences were very sharp. But we knew these were differences amongst committed comrades who were part of one organisation, involved in one struggle, namely bringing to an end white minority rule.
“Over the years as a Congress activist, PG had contributed to building organisations and capacity both in the underground and in the Mass Democratic Movement, working with comrades from all communities in many anti-apartheid campaigns.
“Insofar as this purported report maligns any of the people named in it, it is a complete distortion of the reality. It is a misuse of the document to dub Pravin as a mischief-maker and a cabalist.”