Prologue

Adv. Sello Maema of the NPA’s priority crimes litigation unit on Monday served an expanded charge sheet on former SARS deputy commissioner Ivan Pillay, former head of investigations Johann van Loggerenberg and former investigator Andries Janse van Rensburg. The trio appeared in court this week for the first time. Maema signed off on the document on behalf of adv. Torie Pretorius SC, the acting special director overseeing the priority crimes litigation unit.

The NPA’s argument is riddled with basic mistakes, makes logical jumps, and errs in fact and in law.

The NPA does not agree with the analysis you are about to read and maintains that its “facts are not twisted or wrong in any sense” and that their legal arguments are sound.

NPA spokesperson Phindi Louw this week said the prosecution was legitimate, reports Daily Maverick journalist Greg Nicolson. Said Louw:

“We have an obligation as the NPA to subject the accused to a fair trial and so far we have done that. The state enrolled this matter in court because there were some criminal elements acknowledged. I can confidently say that there are no external forces outside of the NPA that are making all this happen.”

Project Sunday Evenings

The three former SARS officials stand accused of being corrupt and of having intercepted NPA communication.

The charges relate to Project Sunday Evenings – an opaque event that happened around 2007. The politics of the time was confusing and marred by inordinate allegiances. The NPA and then ace investigative unit Scorpions were seen as being anti-Zuma, while SARS was regarded as relatively pro-Zuma. Both sides deny the veracity of these perceptions to this day. The politicised views of state departments – populated by Struggle veterans and apartheid underground operatives – made for difficult working relations.

Against the backdrop of this politically volatile period, former prosecutor Gerrie Nel and his team suspected that some of their colleagues were slipping secret information about their prosecutions (specifically relating to the then SAPS commissioner Jackie Selebi) to politicians.

Nel was authorised to install security and surveillance equipment in some NPA offices and boardrooms in Silverton, Pretoria, to flush out the spy, senior NPA sources told Scorpio. This was confirmed by SARS sources. The NPA declined to explain the authorisation on the record, but said all concerned “will understand the line of authority when the matter is heard in court”.

One Helgard Lombard, a former operative in the murky world of state security who still has a name for being the best in the surveillance game, was recruited for the job. It seems that neither Nel nor the NPA at the time realised that Lombard was also employed by SARS – a fact that a proper due diligence should have highlighted. This also raises probable ethical problems for Lombard if he did not disclose the fact to Nel. Installing surveillance seems to have been Lombard’s weekend job – legally so, and one he declared to the revenue service, sources say.

The NPA allegedly authorised Lombard to install the equipment, download the information, transcribe the content and provide it to the NPA. The “operation” lasted just over two months, according to the prosecutors’ own version of events.

Lombard’s manager at SARS was Andries Janse van Rensburg, the second accused in this matter. Janse van Rensburg was aware of the NPA’s request and, seemingly without Nel’s knowledge, recruited another SARS investigator to assist in the transcription process. This poses another ethical problem for the accused. If Lombard accepted the brief to install equipment in the offices of the NPA in his private capacity, in what capacity did his SARS colleagues get involved in the matter? Whether their acts contravened any existing law will have to be sussed out in court.

The dissemination and transcription of the NPA tapes were mostly done on Sunday evenings – hence the code name. According to sources it was never a known or sanctioned SARS project, but it is clear from some interviews conducted by Scorpio that not every SARS official involved was in on the game. Some officials were under the impression that they were working on a sanctioned SARS project. This is a fact repeated in the NPA’s charge sheet. This alleged misperception might pose the biggest ethical and legal dilemma to the three accused.

The NPA argument – basic mistakes, logical jumps and errors in fact and law

Nel, sources say, paid Lombard for the job in cash with money from the NPA’s secret fund.

Curiously, you don’t find Nel’s name, the actual amount of cash he paid to Lombard (it was about R1.2-million, sources say) or the above-mentioned sequence of events in the NPA’s papers served on the SARS trio. The NPA also do not include the method of “spying”, a description of the equipment or how and why was it outlawed.

In fact, the charges point to the exact opposite of all available information. States the charge sheet:

“In that during the period June 2007 until November 2007… [Ivan Pillay] and [Andries Janse van Rensburg] unlawfully and intentionally procured mr Helgard Lombard [the state’s section 204 witness] to intercept communication within the offices of the [now disbanded Scorpions] and those of the NPA without an interception direction issued by the designated judge in terms of RICA”.

This statement contradicts key affidavits submitted to the NPA as well as the first-hand account of eight sources concerned with the matter, as told to Scorpio. We have gathered this information over the past three years and reaffirmed the facts in order to write this analysis.

The NPA disagrees with our information, but declined to say why, stating that the facts will be aired in court.

When one traces the origins of the NPA’s “factual” statement in the charge sheet, a relic of the Tom Moyane era rears its head. Pretorius’ and Maema’s statement leads you right back to the now discredited KPMG investigative report into what the Sunday Times at the time described as a “rogue unit” operating within SARS. The Sunday Times later had to withdraw their “revelations” when they couldn’t produce the evidence and conceded that there was no rogue unit which operated a brothel and spied on former president Jacob Zuma.

The sections the NPA depend on were blatantly copied and pasted, along with grammatical errors, into the discredited KPMG report from an information note drafted by law firm Mashiane Moodley and Monama (the preferred law firm of now suspended SARS commissioner Tom Moyane). So devastating were the mistakes in KPMG’s report that the global audit firm fired eight members of its management team, including its CEO, and withdrew the recommendations and findings of their report in September 2017.

Another curious question revolves around the culpability of Lombard – the actual installer of the surveillance equipment and gatherer of information.

Lombard is now a state witness (under section 204) against the three accused.

A question the NPA will have to answer in court: If Pretorius and Maema wanted to prosecute the alleged “crime” of interception and corruption, why are they giving the number one “offender” (Lombard) a free pass, allowing him to be a section 204 witness?

Another problem the NPA does not explain is by what method Lombard “intercepted” communication from their office, how did he gain access to their office to install equipment in about 15 offices and boardrooms and how was he paid for the work done.

These material facts are omitted in their preamble and description of the sequence of events.

Charge One: The interception of communication, as described in the Regulation of Interception of Communication and Provision of Communication-Related Information Act 70 of 2002 (RICA)

The question we’re left with is “why?”.

A possible answer: The NPA needs this version, created by Mashiane Moodley and Monama, otherwise its first charge fails.

Interception is when someone (who is not part of the “conversation”) gains access to the communication (and uses the content for a purpose other than intended) between a sender and receiver without their explicit knowledge or agreement.

If the NPA in 2007 authorised the installation of surveillance equipment in their own offices, Pretorius and Maema will struggle to prove that the act of “interception” took place.

SARS sources maintain that Nel’s team subsequently asked known operatives in the industry for recommendations on who to appoint.

Senior NPA sources explicitly told Scorpio that Nel “did nothing wrong” because he was “authorised in writing” to secretly install the surveillance equipment.

Yet Pretorius and Maema state that the instruction to intercept NPA communication came from Pillay and Janse van Rensburg. The NPA declined to explain this discrepancy, but said that “we are clear of who authorised what in this matter”.

Pretorius and Maema will have to explain to the high court on whose set of facts they based their version, and why they seemingly disregarded the affidavits of key witnesses.

National Strategic Intelligence Act vs relevant SARS acts

Another relic of the discredited investigation into the alleged SARS “spy unit” is the Sikhakhane report.

It was described by legal experts as severely flawed in process, fact and law.

One of its key discussion points was how the National Strategic Intelligence Act does not allow SARS to conduct any “covert” investigation.

Pretorius and Maema seem to have latched onto this argument, too, in order to somehow prove that SARS was not allowed to gather intelligence.

Why might pose a legal mystery, because the National Strategic Intelligence Act doesn’t seem to have any bearing on the “interception” argument. The Act speaks of the powers to gather information and not how interception is legally done.

This is the first problem with including the National Intelligence Act in the charge sheet.

The second problem is that it seems to highlight a failure of logic.

Said Pretorius and Maema in the charge sheet:

“SARS is not mentioned as one of the National Intelligence Structures established in terms of the National Strategic Intelligence Act and can only work with other law enforcement agencies within the principle of co-operative government in achieving its objectives…”

Pretorius and Maema go on to use the SARS Act in an attempt to prove that SARS may not gather “intelligence”.

The intricacies of the legal argument are better left to a court, because no two experts in the National Strategic Intelligence Act agree on its meaning.

Where the NPA’s logic seems questionable is in the attempt to judge SARS by an Act that the prosecutors themselves say excludes the revenue service.

SARS must be judged by the acts which govern it.

The prosecutors can also not exclusively turn to the SARS Act in order to establish the revenue service’s powers, because the Act only establishes SARS as a corporate body and discusses the rules of how the revenue service is set up.

SARS exercises its powers in terms of the Income Tax act and the Customs and Excise Act. Scorpio interviewed several income tax as well as customs and excise experts, who all said the acts give SARS almost untrammelled powers in many instances. The first question to be asked, is “did the accused do anything that contravened the Income Tax act and the Customs and Excise Act”.

The problem however remains that Pretorius and Maema may struggle to link the National Strategic Intelligence act to their ultimate goal: To prosecute the accused for interception.

Charge two: Corruption, as described in the Prevention and Combatting of Corrupt Activities Act (Precca) 12 of 2004

Maema and Pretorius’ papers accuse Pillay and Johann van Loggerenberg of committing corruption by contravening provisions of the Prevention and Combating of Corrupt Activities Act. The abbreviation for this act is “Precca”.

Maema and Pretorius’ papers describe this act as “Poca”. Poca is the abbreviation for an entirely different act – the Prevention of Organised Crime Act.

The two state advocates make this basic, yet serious, mistake four times over.

The NPA regards this as a pedantic point. We beg to differ.

A second concern is the NPA’s version – or lack thereof – of how the money found its way to Lombard, and what amount was actually paid to him. According to the NPA, Pillay and Van Loggerenberg offered Lombard an “amount of approximately R100,000” for his part in the alleged spying ring.

Nowhere in the NPA’s version do they state that the NPA actually paid the money to Lombard, and that the total amount paid was around R1.2-million.

If the NPA were to concede that they themselves paid Lombard the amount of R1.2-million, even a legal novice would question where the orders to install security equipment actually came from. If proved to be correct, this may be the biggest hurdle in proving the charge of corruption.

The third concern is that Van Loggerenberg, in a letter to the NPA, said he had no oversight role over Lombard or Janse van Rensburg at the time concerning Project Sunday Evenings, and had therefore no bearing on any of the matters.

Why Van Loggerenberg is charged is not yet motivated.

Van Loggerenberg is, however, the sole SARS official who during his time as head of SARS Investigations gained a full picture of the extent to which the extended Zuma clan skipped on their tax payments.

Dragging Pravin Gordhan back into the ring

It took South African politicians almost four years to realise that Tom Moyane was appointed as SARS commissioner in September 2014 with an alleged mission to decimate the revenue service’s investigative capacity and force out a number of officials who were investigating the sensitive tax matters of the extended Zuma clan.

Moyane was suspended by President Cyril Ramaphosa on 19 March based on Scorpio’s revelations of his handling of matters pertaining to his second-in-command Jonas Makwakwa’s and the Guptas’ VAT payments.

The current criminal investigation against Pillay, Van Loggerenberg and Janse van Rensburg dates back to the Brooklyn police case number 427/5/2015. This is the same case number Moyane himself opened at the police station and again the same case number used by the NPA in their abortive attempt to charge Pravin Gordhan for fraud in late 2016.

Gordhan was well into his second stint as minister of finance at the time, and was busy closing the Guptas’ money tap in SoEs.

NPA head Shaun Abrahams sheepishly had to withdraw the charges against Gordhan, 20 days after the NPA controversially charged the minister.

Pretorius and Maema now managed to haul accusations against Gordhan back from the grave in such an awkward way that one is left wondering if this whole case is not, again, designed to keep Pillay out of SARS and Gordhan (now minister of public enterprises) away from state companies.

Pretorius and Maema are, on their own version, attempting to prove illegal interception and corruption.

Yet, under a heading titled “Summary of Substantial facts in terms of Section 144 Act 51 of 1977 (Criminal Procedure Act)”, the NPA describes the formation of the SARS investigative units that Sunday Times infamously labelled as being “rogue”. The units have a long and complicated history and changed names several times over a number of years. Its last name was the High Risk Investigation Unit (HRIU), and can simply be described as a unit with some intelligence capability that was supposed to target the illicit economy, including cigarette and abalone smugglers.

The charge sheet continues to describe how Gordhan (then SARS commissioner), Pillay and Janse van Rensburg signed a memorandum in 2007 requesting funding for the HRIU unit from then minister of finance Trevor Manuel. The injection of Gordhan and Manuel seems awkward and out of place, but the NPA strenuously denied any ulterior motive. The descriptions in the charge sheet contain several lies that will be easily contradicted by a simple chain of evidence and documents Scorpio has had sight of.

One of these lies is that both Pillay and Janse van Rensburg “placed members of the HRIU under the impression” that Project Sunday Evenings were a legally sanctioned SARS project.

The NPA’s problem: The HRIU did not exist at the time. Whether Pillay and Janse van Rensburg at any time placed any member of SARS under the impression that Project Sunday Evenings is a legal SARS project will have to be cleared up in court. Whether such an act is a crime is another matter altogether. Scorpio’s interviews with the relevant officials highlight a variety of versions.

Confusing the timeline of when the HRIU existed is another mistake that can be linked right back to the botched Sikhakhane and KPMG investigations – one that Pretorius and Maema blatantly repeat.

It is unhelpful and redundant to weave in the formation of the HRIU when your goal is to prove interception and corruption. Most of the members of the HRIU were totally unaware of Project Sunday Evenings. It provides, however, a handy reason to introduce the names of Gordhan and Manuel back into the charge sheet.

Witnesses from Hell

Several of the 41 witnesses included in the list only found out about the fact after the witness list was released in court. Some of them said they were never contacted about this specific matter and were not asked to be witnesses.

The content of the list is equally astonishing. Witness number one and two are Moyane and former Chief Officer Jonas Makwakwa. They are joined by disgraced prosecutions boss Menzi Simelane, rhino poacher Michael Peega and questionable Hawks brigadier Casper Jonker.

Moyane and Makwakwa will only be able to testify on hearsay. They were not involved in any of the matters before court, but were intricately involved in the botched Sikhakhane and KPMG reports.

Menzi Simelane was appointed by former president Jacob Zuma in 2009 as the NPA boss. He, too, has no first-hand knowledge of what transpired in 2007 with Project Sunday Evenings.

Michael Peega is a former SARS investigator incorporated in the units preceding the HRIU. Van Loggerenberg initiated disciplinary proceedings against Peega, who was ultimately fired from SARS based on his involvement in a rhino poaching incident. Peega begrudged being kicked out of SARS and was the author of many fake “intelligence dossiers” claiming impropriety at SARS.

Brigadier Casper Jonker’s inclusion in the list is equally strange. Jonker is linked to the triple spy and lawyer Belinda Walter, who made the first accusations of impropriety against Van Loggerenberg and SARS in 2014. None of these accusations has ever been proved. Jonker has no first-hand knowledge of Project Sunday Evenings.

Included in the list of 41 witnesses, probably only about four witnesses can describe their personal first-hand versions of what happened around Project Sunday Evenings. They are: the installer of the surveillance equipment, Lombard, his SARS colleague Johan de Waal, the proprietor of the equipment, Gerrie Nel, and his NPA colleague Andrew Leask.

Three more witnesses included in the Pretorius and Maema list raise eyebrows: Trevor Manuel; Gordhan’s personal assistant while he was SARS Commissioner, Joanne Scott, and the general manager in Gordhan’s SARS office, Jeannee Padiachy.

Manuel agreed to the formation of an investigative capability within SARS as mentioned above. His signature is on the same memo as that of Gordhan, Pillay and Janse van Rensburg. He however has no knowledge of or involvement in Project Sunday Evenings, and has said so publicly many times. Scott and Padiachy were concerned with the day to day workings of Gordhan’s office. They, too, had no involvement in or knowledge of Project Sunday Evenings.

The person who yet again seems to be the centre of a convoluted scam, but is actually not included in Pretorius and Maema’s list of witnesses?

Pravin Gordhan.

The three accused are represented in court by Laurence Hodes SC, a highly regarded advocate and member of the bar since 1988. Hodes will surely ask at least some of the questions raised in this analysis, and Pretorius and Maema will have a torrid time providing answers. DM

Photo: Former SARS deputy commissioner Ivan Pillay (R) arrives at the head offices of the Hawks police unit with Johan van Loggerenberg behind him, Pretoria, South Africa, 25 August 2016. EPA/Kim Ludbrook