The national director of public prosecutions, Shamila Batohi, may have to decide whether to go ahead with the prosecution of three former South African Revenue Services (Sars) officials on charges connected to allegations of a “rogue unit” at the tax agency.
The rogue unit became highly politicised when, on the basis of the allegations, a number of top Sars officials were hounded out of the agency by former Sars commissioner Tom Moyane.
Their removal was viewed by some as part of the capture of the revenue service by Moyane. Even though many of the allegations have since been discredited, opponents of Public Enterprises Minister Pravin Gordhan — minister of finance at the time — continue to raise them.
The charges against Johann van Loggerenberg, Ivan Pillay and Andries Janse van Rensburg relate to the alleged unlawful bugging of the National Prosecuting Authority (NPA) offices in 2007, in a project dubbed “Sunday Evenings”.
Van Loggerenberg, Pillay and Janse van Rensburg have applied for the case to be struck off the roll and that it not be resumed without Batohi’s consent. Their application was heard by Judge Jody Kollapen in the Pretoria high court on Tuesday.
Project Sunday Evenings is the basis of the only criminal case instituted thus far relating to the “rogue unit” operating at Sars. Now-discredited media reports claimed the unit had also bugged senior politicians including former president Jacob Zuma, run a brothel and illegally procured surveillance equipment.
Aside from the criminal prosecution by the NPA, the matter is also being investigated by public protector Busisiwe Mkhwebane, who has subpoenaed Pillay and Gordhan, among others, about the unit and the Sunday Evenings project.
The allegations of a “rogue unit” has been persistently kept alive by senior Sars officials, Moyane and, more recently, the Economic Freedom Fighters.
Gordhan — who was at the helm of Sars when the unit was established — has consistently denied that the establishment of the unit was illegal and maintained that it was done with the approval of then finance minister Trevor Manuel.
Gordhan has described the persistence of the “rogue unit narrative”, despite findings by the Sars commission of inquiry that its establishment was lawful, as a “fightback campaign” to disrupt efforts to fight corruption in government.
On the other hand, Gordhan’s opponents have relied on an internal Sars report by senior counsel Muzi Sikhakhane, which, they say, proved the existence and unlawfulness of the unit and that the report has not been set aside or challenged.
The criminal complaint about the unit and the bugging of the NPA offices was made at the Brooklyn police station in May 2015 by Moyane, who laid charges of “corruption, espionage, money laundering, racketeering and contravention of intelligence legislation” against six former Sars officials, including the three who have since been charged.
In a case in which the political waters are muddied, Batohi has had to tread carefully. In February, the state attorney wrote to the accused on behalf of the NPA, saying that Batohi was “looking into this matter” and was requesting that “further steps be suspended”.
The letter was referring to a decision by her predecessor, Shaun Abrahams, who dismissed complaints by Van Loggerenberg, Pillay and Janse van Rensberg against the conduct of three prosecutors involved in the matter.
The investigation into the rogue unit and Sunday Evenings initially led to the charging of Pillay and Gordhan in 2016 over a separate matter — the early pension payout to Pillay, who was deputy commissioner at the time.
The case was abandoned less than a month later by then prosecutions chief Abrahams, who had initially announced the charges to the nation in a live media briefing.
Then, in March 2018, the three were charged in relation to Sunday Evenings on three counts — contravening the Regulation of Interception of Communication and Transactions Act and two counts of contravening the Prevention and Combating of Corrupt Activities Act.
Van Loggerenberg, Pillay and Janse van Rensburg argued in court on Tuesday that the undue delays in the matter, caused by the NPA, had prejudiced them and resulted in reputational damage and financial hardship.
In court papers, Van Loggerenberg argued that after six court appearances, with postponements largely from the NPA side, the delays were “inexcusable”.
The three also want the court to order the NPA to hold an inquiry into the “unreasonable and unnecessary delays” by the NPA since the inception of the case. The three have had long-running battles with the NPA over access to the docket, which is required to help them to prepare their defence.
Kollapen asked their counsel, Laurence Hodes SC, who represented the three applicants, whether the 10-month delay, which they argued was prejudicial toward them, was not as a result of ordinary or systemic delays, commonplace in the criminal justice system.
Hodes denied this, saying the responsibility for the delays fell squarely on the shoulders of the NPA. He argued that the NPA did not respond to correspondence from his clients and, it was found thereafter, that the authority used “non-existent” or incorrect email addresses.
He complained that the NPA would have a “knee-jerk” reaction to requests for information and then would “capitulate” at the last minute, which would further delay the matter. This was in relation to requests by the applicants’ legal team for access to the complete docket.
The NPA, represented by advocate Lindi Nkosi-Thomas SC, said the delays cannot be placed at the door of the authority. The applicants had also filed their papers three days late. Nkosi-Thomas added that the NPA was “ambushed” by the application for the matter to be struck off the roll.
But Kollapen said, to be fair, the applicants had indicated in previous court appearances that the application would be brought.
Part of the fight was over access to the docket — the file containing evidence to be used at trial, which accused persons are entitled to.
NPA deputy director Sello Maema said the applicants had taken the NPA’s commitment to providing the complete docket “out of context” as this did not mean the entire docket, but rather just Part A of the docket, and this was in line with the NPA’s policy.
Maema also argued that the applicants’ request for Part B and Part C of the docket was “weak and vague”, and that the accused were using this to “avoid standing trial at all costs”.
The applicants have not made out a case in fact and law that there have been undue delays in the prosecution, he said.
Nkosi-Thomas said their capitulating to allow the applicants access to the docket was done merely to “hasten the commencement of the criminal proceedings” and was not a “concession” that their earlier legal stance was wrong.
Hodes responded by saying that the NPA could not hide behind its policy, because it did not apply it in this matter. He also said prosecutors had not shown in their papers that they are not responsible for the delays.
Maema added in the NPA’s responding papers that the delays were the result of the fact that he is the deputy director of public prosecutions in the North West and has been seconded to the priority crimes litigation unit in Pretoria. Because he has to travel between the two offices he does not “respond to correspondence as promptly” as he should. He said these were circumstances beyond his control.
The criminal case has been set down for June, but rests on the judgment to be handed down by Kollapen in a few weeks’ time.