Vlok Symington, SARS deputy director of law and the man who signed off on the 2009 exculpatory memorandum that led to the NPA’s withdrawal of fraud charges against Finance Minister Pravin Gordhan, is again being placed under pressure by the Hawks. Symington was summoned to meet with KZN Hawks head, Major-General Jabulani Zikhali, in Commissioner Tom Moyane’s boardroom last week and asked to resubmit a sworn statement made to IPID with regard to charges of kidnapping and assault, but this time as a mere report, weakening the case against four Hawks officers implicated in the drama. Meanwhile, SARS attempted to appoint a law firm linked to more than 400 entities in the leaked Panama Papers and who were being investigated by Symington, to conduct an internal grievance process. Just when you thought things couldn’t get any weirder. By MARIANNE THAMM.

SARS officials caught in the cross-fire of the desperate political war between Commissioner Tom Moyane and Minister of Finance Pravin Gordhan will be questioned on Monday at SARS headquarters during an internal grievance process aimed at investigating a “hostage drama” that took place in a boardroom of the same complex on October 18.

There are currently three processes under way in the aftermath of the drama: an internal SARS grievance process lodged by Symington against Commissioner Moyane’s bodyguard, Thabo Titi and other SARS officials who had allegedly held him against his will; an IPID investigation into four Hawks officials including Brigadier Nyameka Xaba, head of the Hawks’ Crimes Against the State (CATS) unit, on charges of kidnapping; as well as the Hawks’ own investigation into their members.

In normal circumstances the Hawks would rely on the IPID investigation and it appears as if the Priority Crimes Litigation Unit is attempting to interfere with this process. With the independent-minded and formerly suspended Robert McBride back in the saddle as the IPID’s executive director the Hawks appear to be scrambling to weaken the case against their own members.

In his sworn statement, Symington told IPID that one of the Hawks members who was involved in the hostage drama had confessed to him that the Hawks investigative team working on the Gordhan charges had been in possession of the exculpatory memorandum from the outset but had withheld it from the NPA.

Daily Maverick has reliably learnt that last week Symington was summoned to Commissioner Moyane’s boardroom at SARS to meet with (strangely enough, as the matter occurred in Pretoria) KZN Hawks head, Major-General Jabulani Zikhali. He is believed to have requested Symington to resubmit his sworn statement about the Hawks member’s confession merely as a report. This would legally weaken its significance.

Symington reportedly refused to do so.

Symington became an accidental hero when he refused to hand over to Brigadier Xaba on October 18 a printed e-mail from attorney David Maphakela, of SARS’ legal firm Mashiane, Moodley and Monama, stating that he [Maphakela] could not be involved “for ethical reasons” in a request by Xaba for Symington to provide an affidavit about the circumstances under which he wrote the 2009 memo with regard to former Deputy Commissioner Ivan Pillay’s early retirement.

The Hawks and the NPA were at the time counting on charging Gordhan, Pillay and former Commissioner Oupa Magashula with theft and fraud related to Pillay’s retirement. This after the Hawks were initially unable to nail Gordhan during their “investigation” into the so-called SARS rogue unit after the Finance Minister had replied comprehensively to a list of “27 questions” sent to him by Hawks head, Lieutenant-General Mthandazo Ntlemeza in February this year.

When that attempt failed, the Hawks shifted the target and dredged up the alleged early retirement “fraud”.

In the end it was the Symington Memorandum, as it became known, that led to NPA head Shaun Abrahams withdrawing the charges against Gordhan, Pillay and Magashula on October 31.

An extraordinary exchange of acrimonious letters between Ntlemeza and Abrahams was made public when the Helen Suzman Foundation (HSF) and Freedom Under Law (FUL) later filed on November 9 an application ordering President Jacob Zuma to suspend Abrahams, Dr Torie Pretorius, head of the Priority Crimes Litigation Unit, and Adv Sibongile Mzinyathi, DPP head for North Gauteng, pending an inquiry into their fitness to hold office. This after Abrahams was forced to withdraw charges because of the Symington memorandum.

The letters in Abrahams’ responding affidavit in that matter reveal that Ntlemeza was heavily invested in charging Gordhan and in fact attempted to pressure Abrahams into doing so.

The NPA only became aware of the existence of the memorandum when the HSF and FUL filed an application to the Pretoria High Court on Sunday, October 16 asking the court to set aside and declare unlawful the charges brought against Gordhan, Pillay and Magashula. Before filing the application, HSF and FUL sent their founding affidavits to Abrahams.

It was then that the NPA discovered that the Hawks had withheld the Symington memorandum.

Then all hell broke loose.

On Monday October 17, Pretorius, the man tasked with investigating Gordhan and who had recommended to Abrahams that the Finance Minister and his colleagues be charged, sent a letter to Xaba, listing questions that needed to be answered, most urgently, those relating to the 2009 memorandum.

Xaba, in turn (and unusually) wrote to SARS legal firm, Mashiane, Moodley and Monama, and attorney David Maphakela explaining that the Hawks needed Symington to urgently provide an affidavit with regard to the circumstances under which he wrote the 2009 memo with regard to Ivan Pillay’s early retirement.

Maphakela replied, not to Xaba but to Commissioner Moyane, explaining that “on ethical reasons I cannot be involved in this one. I hold a different view to the one pursued by the NPA and the Hawks.” [In relation to the prosecution of Gordhan, Pillay and Magashula].

The following day Symington was instructed by his superior, Kosie Louw, then deputy head of SARS, to urgently reply to the NPA’s questions at the request of Commissioner Moyane. Xaba and three other Hawks members, accompanied by Moyane’s bodyguard, Titi, met Symington in the boardroom and left him with a bunch of documents to which they had accidentally attached Maphakela’s opinion.

Louw, Chief Officer of Legal and Policy, one of the longest serving officials of the SARS executive committee, has subsequently resigned.

Xaba, Titi and other Hawks members later returned to the boardroom – ostensibly after discussing the matter with Moyane and discovering that Maphakela’s e-mail was now in Symington’s hands. Xaba, Titi and Hawks officials desperately attempted to retrieve it. Symington, now alert to the matter, refused to hand over the e-mail after which he was locked in the boardroom by Titi – an event that he [Symington] managed to film with his cellphone. He also called 10111 in an attempt to get help.

It is this fracas that will be investigated on Monday morning when Symington, Louw and other SARS officials are questioned in the internal grievance process. Daily Maverick has learnt that SARS originally approached the legal firm ENS to act as impartial and objective external investigator.

When ENS reported a potential conflict of interest with regard to other work it performed for the revenue service, SARS appointed the Bloemfontein based legal firm Phatshoane Henney Attorneys which has been linked to 436 entities named in the “Panama Papers” leaked by the International Consortium of Investigative Journalists in May this year and which revealed how clients of Mossack Fonseca, a Panamanian law firm and corporate service provider, hid billions of dollars in tax havens. Phatshoane Henney had a relationship with Mossack Fonseca.

It is understood that Symington objected strongly, telling SARS officials arranging the internal grievance process that he was in fact investigating Phatshoane Henney for its involvement in the Panama Papers leak.

SARS was then forced to replace the firm with another, Mothle Jooma Sabdia.

Meanwhile, the relationship between Gordhan and Moyane has irretrievably crumbled after Gordhan accused SARS leadership last week in a written reply to a question by the DA’s finance spokesperson, David Maynier, with regard to a new investigative unit that has been established within SARS and that is similar to the former High Risk Investigative unit.

Gordhan replied that he could only offer a reply to Maynier based on information SARS had provided but that he could not verify its veracity or accuracy “because of a lack of accountability and co-operation from the SARS top management”.

SARS hit out afterwards, issuing a statement that it learnt “with dismay” Gordhan’s charges of a “lack of accountability”.

“The SARS wishes to express its deepest concern and disturbance at this turn of events that cast aspersions and blemishes on the character and integrity of its leadership,” SARS spokesperson Sandile Memela responded in a statement.

Memela added that SARS had replied to 29 parliamentary questions since December 2015 when Gordhan was parachuted back into the ministry after President Jacob Zuma’s attempt at installing Des van Rooyen, who was hand-picked by the Gupta family.

SARS had also appeared before Parliament’s Standing Committee on Finance, said Memela, as well as having attended committee meetings, and had met with the Finance Minister eight times “since he took office to discuss issues of mutual interest”.

While the SARS statement may indeed cover a broad sweep, it is the detail of the new investigative unit, the terms under which it has been established and its mandate, that Memela and SARS have not clarified.

While a letter by Moyane to Gordhan on November 22 indeed acknowledges the establishment of the unit, the commissioner does not set out the legislation in terms of which this new unit is constituted, nor does he elaborate on its mandate or whether this has been approved, and if so by whom.

The letter does not explain how this new unit differs from the original National Research Group/Special Projects Unit/High Risk Investigative Unit, as various iterations of the “rogue unit” were named.

Also, Moyane’s idea of the unit seems to differ markedly from that of Yegan Mundie, a senior manager with the SARS anti-corruption unit, who heads the new unit. While Moyane informed Gordhan that the mandate of the SARS officials employed by the new unit “is only in as far as it relates to SARS employees involved in alleged criminal and tax matters” and that it operated “in SARS offices and are known in SARS that they are targeting criminal syndicates in SARS”, Mundie’s memo to Hlengani Mathebula, Chief Officer for Strategy and Communications, is quite different.

Mundie suggests that certain taxpayers (most notably Mark Lifman, a Cape Town businessman linked to the underworld and the ANC) and not SARS officials should be targeted. In Lifman’s case Mundie has suggested a re-audit of Lifman’s more than R300-million tax bill. Also, Mundie asks, in his memo, for a “safe house” from which to operate which contradicts Moyane’s statement that it operates from SARS offices.

Several taxpayers are attempting to have their tax matters re-looked using a false “rogue unit” narrative.

SARS is facing increased pressure also from an inquiry that will be conducted by the Davis Tax Committee, headed by Judge Dennis Davis, into operations at SARS. Davis will look at the closure of several enforcement units as well as other issues of accountability. DM

Photo: NPA head Shaun Abrahams (GCIS), The Hawks’ head Berning Ntlemeza (eNCA), SARS commissioner Tom Moyane (GCIS)