NEWS ANALYSIS

The prosecution of Minister of Finance Pravin Gordhan is ethically dubious, a lawyer for the South African Revenue Service said in an email chain that has set off an explosive series of events in the past 10 days, including an alleged hostage drama at a Sars office in Pretoria.

The Mail & Guardian can reveal that four Hawks officials are accused of using physical force and “apartheid-style tactics” to retrieve a printout of the damning email from senior Sars employee Vlok Symington. Among them was Brigadier Nyameka Xaba, the Hawks’ lead investigator in the case against Gordhan. Symington was left with bruises on his forearms and hands from the altercation.

Dramatic video and audio recordings suggest that Sars commissioner Tom Moyane might have been consulted and updated during the alleged “hostage” situation.

The recordings were made by Symington and later handed over, with other evidence, to the Independent Police Investigative Directorate (Ipid), which is now investigating the matter.

The M&G has requested comment from all parties involved and will update this article as soon as it is received.

WATCH: Sars employee Vlok Symington held against his will by the Hawks’ Nyameka Xaba and Tom Moyane’s bodyguard pic.twitter.com/rbsOc5TsKW — Mail & Guardian (@mailandguardian) October 27, 2016

This bizarre incident was triggered by an email Moyane had seemingly erroneously shared last week. The chain of events kicks off with Gordhan lead prosecutor Torie Pretorius emailing Xaba, asking Xaba to obtain a statement from Symington. That happened just before 5pm on October 17. Pretorius attached a list of questions for Symington to answer. The questions relate to a legal opinion Symington wrote in 2009 addressing whether Sars was permitted to pay out former deputy commissioner Ivan Pillay’s pension fund and rehire Pillay on a contract basis.

Symington’s legal opinion stated that there was “no technicality” that prevented Sars from reappointing Pillay and that he was “entitled” to request Gordhan (minister of finance at the time, during his first round) to waive the early retirement penalty.

Charges of fraud recently brought against Gordhan, Pillay and former Sars commissioner Oupa Magashula relate to this pension payout.

The recordings capture the following events.

A few minutes after receiving the email from Pretorius, at 5.07pm, Xaba asked Sars lawyer David Maphakela to deal with the National Prosecuting Authority’s request as a “matter of urgency”. Maphakela is a partner in the Gauteng lawyers firm Mashiane Moodley and Monama Inc. It is then that Maphakela emails Moyane the following message:

“Kindly find this 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 short but powerful message, essentially suggesting that Sars’s own lawyer does not agree with the prosecution of Gordhan,Pillay and Magashula, set off the explosive chain of events.

By Moyane’s own doing, this message has now found its way into the public domain.

It seems that at some point after this exchange, Moyane handed a hard copy of Pretorius’s questions, along with the entire email trail, to senior Sars employee Kosie Louw, to whom Symington reports. Louw asked Symington to answer Pretorius’s questions.

At about 10am on Tuesday October 18, Moyane’s bodyguard and the Hawks, including Xaba, met Symington.

The meeting seems to have been congenial, with the Hawks explaining what they would need from Symington.

Serious questions should, however, be raised about why Moyane’s bodyguard, Thabo Titi, accompanied the investigators.

It becomes pertinent when Xaba, Titi and the Hawks returned at 1pm, allegedly robbed of their congeniality. Questioning Titi’s instructions and bona fides become critical when he is recorded seemingly blocking Symington from leaving the boardroom and preventing Sars security officials and Symington’s personal assistant from entering the room.

In one recording Titi can be heard on the phone consulting a person he calls “commissioner” and “sir” and then ordering Sars security to stay outside. Titi was speaking to Moyane, according to insiders.

The Hawks can be heard demanding the email and the questions.

At some point a clearly agitated and intimidated Symington pushed the record button on his phone. He can be heard repeatedly shouting that he was “being held against my will” and “I’m being held hostage”. The recording seems to have been done in secret, but at one point Symington can be heard warning Titi that he was filming them preventing him from leaving the boardroom.

Symington also made at least three phone calls – two to his personal assistant and one to 10111. Symington asked his PA to call the building’s security guards because he was being held “hostage” and “against my will”. The second time he inquired what was delaying security from responding.

Symington seemingly got no joy from 10111. The woman answering the emergency call focused on whether Symington knew the people keeping him hostage and why he was allowed to phone while he was being held. She further struggled to grasp where Symington was – in Sars’s Khanyisa building in Brooklyn, Pretoria.

From the recordings it is clear that between 10am and 1pm on October 18, the Hawks’ attention suddenly shifted from the “urgency” of Symington answering the NPA’s questions to their panicky attempts to get him to hand over the document.

Sars insiders say this shift happened after the Hawks left Symington the first time and walked across the road to Lehae la Sars, the main building and location of Moyane’s office.

Symington can also be heard in the recordings airing his surprise by the sudden ominous turn of the Hawks’ tone, stating that they had had “such a good meeting” in the morning.

Xaba was adamant about retrieving the document that contained the email trail and, crucially, the Sars lawyer’s comment to Moyane. He can be heard saying that the document had been given to Symington “by mistake”. He further explains repeatedly that if he should take Symington’s Sars ID card, with Symington’s name on it, it would be “by mistake”.

One can, however, deduce that Xaba wanted to trade the document in Symington’s possession for another copy of the NPA’s questions – the one without the offending message from the Sars lawyer.

Symington refused. During the recorded conversation it is clear that he has caught on to why Titi and the Hawks so desperately wanted the document back.

“It must be about the attachments,” he can be heard saying to Xaba, referring to the email printout.

At one stage Symington’s boss, Kosie Louw, and colleagues Eric Smith and Mark Kingon joined the unravelling meeting.

Louw asked the Hawks to leave the room to give Symington’s colleagues “five minutes” alone with him. His colleagues tried to placate Symington, seemingly to coax him into giving the document to the Hawks.

Symington did not budge.

It was at this time – about an hour after he was first mentioned being held “against my will” – that Symington lost his patience.

“The commissioner’s bodyguard is holding me hostage,” Symington shouted.

The bodyguard seemed to have retreated after this strong assertion.

And when Symington walked out the door, all hell broke loose.

In the recording shouts can clearly be heard. It is a moment described by an insider where “the Hawks pounced on him and roughed him up a bit while taking the document by force at the moment Symington exited the room”.

Symington’s repeated shouts of “he stole the document” intermingle with the soothing voices of his colleagues, saying: “Vlok, kalmeer nou (Vlok, calm down now).”

The desperation displayed by the Hawks, with the seemingly tacit consent of Moyane, is the clearest show of the lengths certain powerful organs of state are willing to go to in order to prosecute Gordhan and his co-accused. It further confirms, from within the prosecutorial camp itself for the first time, what a near-universal chorus of legal experts have said – that the case against the finance minister is fatally flawed. Most worryingly, it displays the increasingly desperate measures they are willing to resortto, to execute their plan. Violence and intimidation – tactics reminiscent of the apartheid-era State of Emergency – seem to be back in vogue.

It comes on the back of a last-minute subpoena the NPA issued to the chief executive of the Government Pensions Administrations Agency, asking for documents to explain the approval of early retirement requests.

An affidavit filed by Francis Antonie, of the Helen Suzman Foundation, states that the timing of this subpoena suggests a “desperate, eleventh-hour” bid to prop up the prosecution of Gordhan, which was clearly hopeless from the start. The foundation, along with Freedom Under Law, have launched a legal challenge against the NPA over the Gordhan prosecution.

The very basis of the fraud charge against the finance minister is in his approval of Pillay’s early retirement package.

“This is information the NPA should have been gathered long before any decision to prosecute was made and the NPA’s failure to do so underlines the irrationality and unlawfulness of its decision,” the foundation said in a media statement.

“This is especially so given that the information is likely to be exculpatory.”