“I believe that I inadvertently find myself at the centre of the political storm surrounding Minister (Pravin) Gordhan, and the broader issue of state capture,” Sars official Vlok Symington wrote in his founding affidavit on Thursday.
He is now asking the High Court in Pretoria for urgent protection from his boss, Tom Moyane, whom he accuses of personally instructing Sars officials to initiate illegal disciplinary proceedings against Symington in a desperate bid to kick him out of Sars.
Moyane now wants “retribution”, Symington says, because he revealed how Hawks and Sars officials, including those in Moyane’s office, withheld crucial evidence from the National Prosecuting Authority (NPA) during the 2016 investigation into Gordhan. Symington also unwittingly revealed an incriminating letter where Sars’s own lawyer declared to Moyane that he refuses to be part of the Gordhan investigation because of “ethical reasons”. The venomous animosity between Moyane and Gordhan has been well documented in the past. If proved, Symington’s accusation should result in serious criminal charges.
Symington reported this “possible criminal conduct” to the NPA and police watchdog Ipid. In court documents filed on Thursday he asks the court to declare these reports as “protected disclosures” under the Protected Disclosures Act of 2000. If granted, Sars won’t be able to take any steps against Symington to any action relating to his disclosures.
The matter is placed on the court roll for mid-September.
But how did Symington, who holds a mid-level position as pension and tax specialist at Sars, with the title of “principle specialist in the division Legal Counsel”, become a central figure in the current political storm? How is it possible that he played a pivotal role and in doing so, attracted the attention and wrath of a formidable foe like Moyane?
It all relates to that bizarre moment in October 2016 when Moyane’s bodyguard Thabo Titi and several Hawks held Symington “hostage” against his will in a Sars boardroom at its Khanyisa building in Pretoria.
At the time Symington made several video and audio recordings showing how Titi and the Hawks blocked him from leaving the boardroom. The matter ended in the Hawks assaulting Symington in order to get back an incriminating document.
To understand the bizarre sequence of events, we need to take a few steps back and look at the bigger picture. Bear with me, dear reader, it is important.
In 2009 Gordhan, minister of finance for the first time around, requested a legal opinion from Symington on whether it would be proper to allow then deputy Sars commissioner Ivan Pillay to take early retirement and be rehired on a contract basis. Adhering to Gordhan’s request, Symington wrote the memorandum that would seven years later scupper trumped-up fraud charges against Gordhan. At the time Symington found that nothing prevented Sars from allowing Pillay to retire early, pay his pension, stand in for the R1,2million penalty and rehire him on a contract basis. Gordhan acted on Symington’s advice and signed off on Pillay’s early retirement request. This became an issue in 2014 when Sunday Times published “damning” reports about a “Sars rogue unit” (that nonsense of the unit running a brothel and spying on Zuma). The paper had to retract their 32 odd stories on the subject two years later, conceding they got their facts wrong. But the damage was done. Moyane, newly appointed Sars commissioner in 2014, jumped at the chance and laid a criminal complaint with the police against Gordhan, Pillay and others for matters relating to the unit. Over time the investigation and charges morphed, frequently used as a political hammer.
Forward to 2016 and Gordhan is Minister of Finance for the second time — this after public pressure forced President Jacob Zuma to remove weekend special Des van Rooyen from this position. But Gordhan was unwelcome. Corruption in SOE’s has reached critical levels, SAA needed another bail out, the Guptas were using Denel, Eskom and Transnet as their ATM’s and the lingering nuclear deal had to be pushed through. And Gordhan refused to play ball. So former Hawks boss fired off his infamous 27 questions to Gordhan whilst former minister of police Nathi Nhleko and minister of state security David Mahlobo held press conferences to cast aspersions on Gordhan. (The only good thing coming from Nhleko and Mahlobo’s farcical presser, though, was their confirmation that Moyane laid the criminal charges against Gordhan – a fact Moyane to this day spitefully denies.)
The political pressure built and on October 11, 2016, a self-righteous and blustering prosecutions boss adv. Shaun Abrahams announced charges of fraud against Gordhan and Pillay relating to Pillay’s early retirement and pension. It was widely regarded as spurious and unfounded in law. On this day Abrahams notoriously wagged a finger at sceptical journalists from his podium at the NPA headquarters in Pretoria, infamously stating that “the days of disrespecting the NPA are over”. Twenty days later, a thoroughly humble and pale Abrahams withdrew the charges. At the time the move was regarded as a huge political blow for the Zupta camp.
But what happened to effect this about-turn by Abrahams?
Vlok Symington happened.
On 14 October 2016, Freedom Under Law and the Helen Suzman Foundation sent Abrahams a cautionary letter. Attached was Symington’s 2009 memo. The NGO’s warned Abrahams that Gordhan acted on legal advice that was sound in law – the NPA would therefore have trouble proving Gordhan had the intention to defraud the state.
And then came the pivotal act that ended in a “hostage drama” at the Khanyisa building on 18 October: The NPA and Hawks refused to admit defeat on the Gordhan issue and sent Symington a list of questions to answer.
In his court papers filed on Thursday, Symington describes how the emailed questions found their way to him from the NPA and Hawks through Sars’ lawyer David Maphakela, a partner in the Gauteng firm Mashiane, Moodley and Monama Inc.
Addressing Moyane in the email, Maphakela wrote about the NPA and Hawks’ questions: “Kindly find for your urgent attention. On ethical reasons, I cannot be involved in this one, as I hold a different view to the one pursued by the NPA and the Hawks.”
This explosive message, where Sars’s lawyer informs Moyane he wants nothing to do with the Gordhan investigation for “ethical reasons”, was unintentionally printed and stapled along with the NPA’s questions and given to Symington by his line manager to answer.
Symington had a congenial meeting with the Hawks on the morning of 18 October where Xaba described what they expected from him.
It turned sour later in the day, but not before Xaba made a huge blunder: He disclosed to Symington that “the Hawks had been in possession of the 2009 memorandum ‘all along’,” Symington said in court documents.
“I expressed surprise… this memorandum had been circulated within Sars (Legal Counsel Department, Commissioner’s Office and HR) at the time, and in the normal course would have been filed in various places, including the Office of the Commissioner and on Pillay’s HR file.”
This means that neither the Hawks, nor Moyane’s office or Sars’s HR department submitted exculpable evidence to the NPA, rendering the Gordhan investigation unethical, unfair and illegal.
Ipid investigated Symington’s disclosures and advised that the NPA should charge Xaba and his cohorts. In the meantime, the NPA prosecutor heading Xaba’s case had his office burgled and laptop stolen in a curious and suspicious break-in.
But, back to 18 October when things turned sour between Symington and the Hawks: At around 1pm the Hawks returned to his office, after taking a detour through Moyane’s boardroom, and suddenly aggressively demanded the documents back. Symington described the incident as “bizarre” and confrontational, especially because Moyane’s bodyguard, Thabo Titi, “blocked the door to the boardroom, and refused to allow me to leave or to allow people that I had phoned for help, to enter the boardroom”.
The matter escalated to the point that Symington phoned 10111 and Sars security, saying he is being held “hostage” in his own boardroom.
Symington started recording events which clearly shows that the Hawks were ordered to retrieve the documents from Symington by force because he might “leak it to the media”. Unbeknown to him at the time, Symington captured the short but devastating message that Moyane didn’t want South Africans to know of: Sars’s own lawyer was of the opinion that the Gordhan investigation was unethical and did not agree with how the authorities conducted themselves.
The recordings ended where Symington gets “assaulted” by the Hawks, who retrieved the incriminating documents by force.
Sars and Moyane refused to comment on Symington’s allegation, and sent out a curt media statement saying that “Sars is not in a position to comment as the matter is before the courts”.
In our next story, Scorpio will show how Symington lodged an internal grievance against Moyane’s bodyguard – a procedure now used against him in a bid to kick him out of Sars. DM