‘Rogue unit’: Did the EFF mix up facts — or lie to a judge?

8 Nov 2019

The Economic Freedom Fighters got it horribly wrong in the high court this week when they told a judge that a gang of State Security Agency agents were in fact members of the so-called SA Revenue Service ‘rogue unit’.

The spooks identified by the Economic Freedom Fighters as SARS “rogue unit” members were in fact mostly rogue agents of the notorious Special Operations Unit (SOU) of the SSA that in 2014 was intent on removing the top executive of SARS and “capturing” the tax collector in order to protect former president Jacob Zuma, his friends and his cronies as part of State Capture. They were being investigated by SARS for tax evasion, money laundering and fraud at the time.

Standing in front of Judge Nomonde Mngqibisa-Thusi in the Pretoria High Court on Wednesday 6 November 2019, counsel for the EFF, advocate Tembeka Ngcukaitobi, made an astonishing claim that these rogue SSA agents had contracts with SARS and served in the SARS “rogue unit”.

He claimed in court that he obtained his information from Public Protector Busisiwe Mkhwebane’s “rogue unit” report and a bombshell affidavit recently made by former SARS executive Johann van Loggerenberg.

It is untrue. Neither Mkhwebane nor Van Loggerenberg say this in their respective report and affidavit. In fact, Van Loggerenberg implicated the SSA agents in a series of crimes ranging from fraud to money laundering to defeating the ends of justice.

Ngcukaitobi and the EFF — avid proponents of the SARS “rogue unit” narrative — were either being devious or hadn’t done their homework — or there is something else at play here.

In his affidavit, Van Loggerenberg fingered the SSA agents in enabling State Capture by plotting against, among others, SARS, the Hawks and the NPA. He also implicated these rogue intelligence agents in a series of crimes ranging from racketeering, fraud and money laundering to defeating the ends of justice.

One SSA agent that the EFF now maintains was a SARS “rogue unit” member is Thulani Dlomo, a former deputy director-general of the SSA and the former head of the SOU and its counter-intelligence arm. Dlomo, also known as “Silent”, is a self-confessed supporter of former president Jacob Zuma.

Late in 2018, the High-Level Review Panel on the SSA described the SOU as “a law onto itself” that directly served the political interests of Zuma and the executive. The panel found that the SOU had become a “parallel intelligence structure”.

Dlomo worked at the SSA from 2012 until Zuma appointed him as ambassador to Japan in 2017. He was recalled in February 2019 and ordered to report back to the SSA. He disappeared upon his homecoming and it was then that the SSA fired him.

Much has been written about Dlomo in the past few months and it is inexplicable how the EFF could have made such a mistake. In fact, in the past week he was in the news again when he “resurfaced” and gave an “interview” to Independent Newspapers, claiming he was “sick”.

The court proceedings this week centred around a 2014 investigation and resultant report of the Office of the Inspector-General of Intelligence (IGI) into the SSA SOU and other branches of the SSA. It followed an August 2014 report in City Press that exposed the SSA and some of its rogue agents as targeting the top structure of SARS and attempting to discredit top Hawks policemen and NPA prosecutors that were seen to be “hostile” towards Zuma.

The then IGI, advocate Faith Radebe, exonerated the SSA and all its units and agents and instead “found” that SARS had a “rogue unit”. She did this despite having a mountain of evidence at her disposal that implicated members of the SSA and police crime intelligence in a host of dirty tricks and criminality.

The IGI report, marked secret, was leaked to the EFF and it has since been flogging Radebe’s findings as proof of the existence of the SARS “rogue unit”. Mkhwebane also used the IGI findings in her investigation into the SARS “rogue unit”. Her report has been taken on review.

The EFF first made the IGI’s report public by appending it to an affidavit in the Equality Court “dog of white monopoly capital” case brought by Minister of Public Enterprises Pravin Gordhan. This resulted in Gordhan seeking an interlocutory order preventing its public dissemination, which he lost.

The Minister of State Security, Ayanda Dlodlo, stepped into the fray in the review applications by Gordhan, former SARS commissioner Oupa Magashula and former SARS deputy commissioner Ivan Pillay against the findings by Mkhwebane. Dlodlo brought an interlocutory application to have the IGI report struck from the proceedings. This was opposed by the public protector and the EFF, but supported by Pillay and Gordhan.

In its opposition, the EFF also brought a counter-application against Dlodlo. This interlocutory battle was heard on Wednesday in the Pretoria High Court.

A 350-page affidavit (including the appendixes) from former SARS executive Johann van Loggerenberg, signed in September 2019, formed part of Pillay’s papers in the matter. Aspects of Wednesday’s arguments in court centred around this affidavit, which sets out in detail how the “rogue unit” narrative was born during 2014, the dirty tricks campaign by the SSA and others to discredit Pillay and other SARS executives and the mess made by Mkhwebane and Radebe in their investigations.

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Some background is necessary. Van Loggerenberg once headed five investigations units at SARS (the smallest was eventually branded the “rogue unit”). These units investigated the likes of Julius Malema, Radovan Krejcir, Lolly Jackson, Dave King, Glen Agliotti, Mark Lifman and a host of tobacco smugglers.

By 2013, however, they were also investigating Jacob Zuma, Edward Zuma, Khulubuse Zuma, the Gupta brothers and a host of organised criminals with links to the first family. They were also investigating the very same SSA and CI units and agents whose names have now come to the fore.

Van Loggerenberg’s units and SARS came under fire for the first time in 2009 when one of their investigators, Michael Peega, compiled a “dossier”, known as “Project Snowman”. SARS had earlier fired Peega after he was arrested for rhino poaching and possession of illegal firearms and ammunition, which he had admitted to in an affidavit to the police in 2008.

In his “dossier”, Peega alleged SARS had a “secret” unit that spied on politicians, among them Jacob Zuma and “friends of Zuma”, and performed illegal surveillance and telephone tapping of taxpayers using sophisticated equipment.

He claimed that members were trained in spying and paramilitary warfare. During his short stint of two years at SARS, Peega moonlighted as a bodyguard and driver for among others, Julius Malema. His dossier eventually found its way to the then ANC Youth League leader, law enforcement agencies and the media.

SARS refuted Peega’s allegations line by line in 2009, again in 2010, and briefed among others Parliament, top politicians and newspaper editors. Van Loggerenberg briefed Malema personally in the Sheraton Hotel in Pretoria. Malema accepted Van Loggerenberg’s explanation and undertook to brief Zuma.

In his own tax battles with SARS and his later expulsion from the ANC, and when he had formed the EFF, Malema changed his story, accusing SARS of being used by Zuma to target him. But by May 2014, Malema issued a formal apology for casting aspersions on SARS and its officials and settled with SARS.

Malema has, however, revived Peega’s “Project Snowman dossier” as “proof” of the existence of a SARS “rogue unit”. Both the public protector and the IGI relied on Peega’s dossier to make adverse findings against SARS.

It was the same dossier that the Sunday Times flogged from October 2014 (SARS spied on Zuma; SARS ran a brothel) to “expose” a “rogue unit” at SARS which it has since retracted and apologised for.

By this time, Peega had become an agent at the SSA. His handlers lapped up his “dossier” and used it in their operations to discredit SARS. Former SARS commissioner Tom Moyane used, among others, Peega’s dossier to disband the top executive of SARS and rid the revenue collector of its most experienced and valuable tax experts.

I must go back to 2010, when Van Loggerenberg’s investigators picked up that SSA agents were interfering in their investigations, especially those into the tobacco industry. There were several meetings between the SSA and SARS to discuss this interference. Van Loggerenberg compiled his own “dossier” about the SSA’s dirty tricks campaign against SARS.

At the end of 2013 and beginning of 2014, Van Loggerenberg dated (unknown to him yet) the self-confessed SSA agent number 5332, Pretoria attorney Belinda Walter. During the short few months that they dated, she asked him to download the data on three of her older cellphones and a data cloud called “Evil Inc”.

He ended the relationship in early May 2014, after which she publicly attacked him at SARS. Van Loggerenberg decided to have a closer look at the downloaded data and other evidence he had. When he did so, he discovered that SSA agents were not just intent on removing the top structure at SARS, but were deeply implicated in a host of criminality.

In a recent affidavit from Pillay, Van Loggerenberg disclosed that he had a meeting with Zuma in February 2014 where he warned him about SSA’s agenda to destabilise the tax collector. Zuma did nothing.

In August 2014, City Press exposed the SOU and other agents of the SSA for their agenda to “capture” SARS, to get rid of top policemen such as then Hawks head General Anwa Dramat and top NPA prosecutors such as Glynnis Breytenbach.

Then minister of state security David Mahlobo instructed then IGI Faith Radebe to investigate the allegations. The IGI’s mandate extends only to the SSA, police crime intelligence and Defence Intelligence. She had no lawful ability to make any finding about SARS.

Van Loggerenberg tells in his affidavit how he twice appeared before Radebe and her chief legal adviser, advocate Jay Govender. He presented them with a mountain of evidence about the SSA’s “capturing” of SARS and other agencies and its serving of political agendas. He also gave them evidence about the involvement of police crime intelligence in State Capture. Radebe did not just ignore Van Loggerenberg’s evidence — she lost it.

Another SARS executive, Gene Ravele, also appeared before Radebe and Govender. He was Van Loggerenberg’s boss. He has since said that they had done a “hatchet job” and that nothing of what he told them was in their report.

Radebe and Govender chose to believe a host of SSA agents that were paraded before her, among them Thulani Dlomo, Inzo Ismael, Belinda Walter, Mike Peega, Chris Burger, Mandisa Mokwena and Hennie Niemann. These are the same names that the EFF paraded before the high court on Wednesday as “SARS rogue unit” members.

Radebe and Govender never investigated the allegations about the SSA, but instead found “rogue” activity in one of the SARS investigations units.

Zuma richly rewarded Radebe for her sterling service by appointing her as ambassador to Sweden. She died recently. Govender, however, is still the IGI’s legal adviser.

In the meantime, Dr Setlhomamaru Dintwe has been appointed as IGI and in recent correspondence between him, Pillay and Van Loggerenberg, he said he had started a preliminary investigation into the 34 complaints that the former SARS executives lodged with Radebe and Govender in 2014.

The correspondence between Dintwe and Van Loggerenberg forms part of the affidavit that was discussed this week.

The IGI’s mess was highlighted earlier in 2019 in a conversation between Dintwe and Mkhwebane, which Govender also attended. The conversation was tape-recorded. It forms part of the Rule 53 records that Mkhwebane had to disclose in Gordhan’s review application.

In the recording, Dintwe and Govender admitted that 185 agents of the SOU had gone “rogue” and the IGI cannot find them because the SSA had destroyed and “shredded” documentation. These agents possess sophisticated surveillance equipment and have access to huge amounts of money, much of which has been stashed overseas.

Said Govender: “After Thulani left, when he was deployed (to Japan), and the former DG (Arthur Fraser) came in, a lot of records were destroyed as well. You will never get to the bottom of it.”

Dintwe: “Shredded!”

Govender: “After Thulani had left, these people have just been sitting at home. There were records destroyed. Then Fraser left and there were further records destroyed.”

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Back to the court shenanigans this week. A sea of black robes was present in court 6C of the Pretoria High Court on Wednesday when the EFF and the Minister of State Security crossed swords about the IGI’s report. Gordhan, Pillay and Mkhwebane also had legal representation.

Sources close to the proceedings revealed a late-night attempt by the SSA to persuade Van Loggerenberg to withdraw his affidavit, failing which Dlodlo’s counsel was instructed to apply to have it scrapped. Van Loggerenberg refused.

The SSA ultimately abandoned its threat of legal action and Dlodlo’s counsel steered a wide berth around the affidavit during argument. They, however, told the court:

“About Van Loggerenberg’s affidavit, we are concerned today with that IGI report. Van Loggerenberg is concerned about it. We are concerned about it.”

It was astonishingly the EFF that attempted to use Van Loggerenberg’s affidavit to continue arguing that a “rogue unit” existed at SARS and the names of its agents were in the public domain. There was, therefore, no merit in Dlodlo’s application to keep it classified, the EFF argued. But in doing so, the fighters at best mixed up their facts or at worst lied to or misled the judge.

In his affidavit, Van Loggerenberg names six SSA agents who spearheaded the dirty tricks campaign against SARS. He also names a Mdluli-era crime intelligence colonel, a Hawks brigadier and Michael Peega as complicit in the campaign.

Tembeka Ngcukaitobi referred the judge to Van Loggerenberg’s affidavit and said:

“He explains all the agents that are here. The names, the sources, the methods. He gave them out word by word. He is the most authoritative source.”

He read from paragraph 58.1 of the affidavit where Van Loggerenberg names the SSA conspirators. Van Loggerenberg says in the preceding paragraphs (not quoted) that these were the names that he gave to the IGI in 2014, but that their actions were never investigated.

Ngcukaitobi read the names to the judge: “SSA Special Operations Mr Thulani Dlomo, SSA Operations Mr Inzo Ismael, SSA operative Ms Walter, SSA operative Dr Mandisa Mokwena, SSA operative Mr Chris Burger, SSA operative Ms Madeleine Schlenther, Hawks Brigadier Casper Jonker, SAPS crime intelligence operative Lt-Col Hennie Niemann, SSA operative Mr Michael Peega.”

Ngcukaitobi said: “If you look at what the public protector says, it is exactly the same names. These were the people that were associated one way or the other with the so-called rogue unit. This unit focused on high-value cases, big-time criminals and it was necessary to operate outside the norm. That is the version given by Mr Van Loggerenberg.”

Ngcukaitobi fibbed. None of the names — except that of Peega — are remotely associated with the SARS “rogue unit” as members at any time. Mkhwebane doesn’t name any of them — again except for Peega — in her “rogue unit” report.

But it doesn’t stop there.

In order to explain their SSA status, Ngcukaitobi said:

“Although there is a dispute about whether these were SSA officials or not, this is resolved conclusively by two sources: the public protector report that outlines that these were SSA operatives that had contracts with SARS. Mr Van Loggerenberg also makes the same point. He says these people all signed contracts with SARS. He then discloses fully that these were so-called SSA operatives.”

There is no dispute whether those named as SSA operatives were SSA operatives. It is ludicrous to suggest that Dlomo, who is constantly in the news, was secretly a SARS official. It is a complete thumb-suck that these SSA agents had “contracts with SARS”. Mkhwebane doesn’t say this anywhere in her report and neither does Van Loggerenberg.

And again, Ngcukaitobi conflates Peega for working for SARS between 2007 to 2009 with him later working with Walter, Burger and Schlenther at the SSA.

Ngcukaitobi further attempted to mislead the court when he read from paragraph 104 of Van Loggerenberg’s affidavit, apparently to show the judge that the SARS “rogue unit” used tracking devices.

He read from the affidavit:

“To the extent that tracking devices were ever used by the unit, I am aware of two such instances in 2007, where the unit worked closely with the Johannesburg Metro Police Department to ensure the arrest of a tax fraud fugitive with a warrant of arrest issued by the NPA and one instance where, in conjunction with the SAPS, a container containing contraband was seized and forfeited to the state.”

But Ngcukaitobi failed to read the last, and probably the most important part of the sentence in the paragraph to the judge:

“These devices did not belong to the unit.”

Judgment in Dlodlo’s interlocutory application is expected to be handed down before the end of the court term in 2019. DM

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