SARS hostage drama, the reckoning: Which limping buffalo will fall first – Moyane or Abrahams? Or both?

Spare a thought for poor SARS Commissioner Tom Moyane. He’s had a bad week.

First he learnt that Corruption Watch is planning to charge him under the Financial Intelligence Act for the manner in which he handled mysterious payments amounting to around R1.2-million into the private bank accounts of his No 2 Jonas Makwakwa and his girlfriend Kelly-Ann Elskie.

Then on Wednesday, startling video and audio footage emerged of a dramatic “hostage” situation that took place in the SARS head office boardroom on October 18 after Moyane accidentally attached an opinion by SARS lawyer David Maphakela – that he could not “on ethical reasons” be involved in the Prosecution of Gordhan, Pillay and Magashula – to an NPA list of questions to SARS Deputy Director of Law, Vlok Symington, who had signed off in 2009 a request for early retirement by former Acting Commissioner Ivan Pillay.

The NPA’s Special Acting Director, Torie Pretorius, the man NPA head Shaun Abrahams said decided to charge Gordhan, Pillay and Magashula with fraud and theft, had a few questions to ask of Symington, apparently. This after the Helen Suzman Foundation and Freedom Under law had forwarded to the NPA copies of their affidavit for an urgent application to the Pretoria High Court to have the charges reviewed and set aside.

Part of that bundle contained the memorandum from Symington. The heavies who had gone to chat with Symington on October 18 were head of the Crimes Against the State Unit, Brigadier Nyameka Xaba, three Hawks officialsas well as Moyane’s bodyguard Thabo Titi.

When the Keystone Cops realised they had mistakenly left a pile of documents with Symington which revealed that SARS’s own lawyer had refused to participate in the charade, they locked Symington in the boardroom in a desperate bid to retrieve the hard copies of the documents for Moyane. Symington had the presence of mind to film and record the entire sorry saga. He also tried to phone 10111 (this in itself is a mini-drama):

The SARS media division (once a formidable operation run by the now former spokesman Adrian Lackay) on Thursday had only this to say about the second biggest scandal to rock the revenue collection service this year:

“SARS has noted the media reports and circulated video material. To the extent that the matter relates to members of the Hawks the enquiries must be directed to the relevant law enforcement agency. Where SARS employees are concerned a full investigation will be conducted and a public statement issued.”

That’s it, citizen taxpayers.

A statement bereft of any gravitas or sense of urgency or crisis.

Enquiries directed are met with... the sound of a desperate silence.

Moyane, we must remind you at this juncture, is one such SARS employee as referred to in the Thursday media statement. In fact he is number one suspect. It was Moyane who lodged the original charge with the Brooklyn police in March 2015 against Gordhan, Pillay, Van Loggerenberg and various others, initially in relation to the “rogue unit”.

It is this original docket that has provided the impetus for the hounding of Gordhan, the 27 questions with regard to the “rogue unit” sent in February by Hawks head Lieutenant-General Mthandazo Ntlemeza.

When these allegations proved too difficult to make stick immediately (they are STILL being investigated, Abrahams informed the masses) the NPA and Torie Pretorius (according to Abrahams) snuffled the fraud and theft charges with relation to the early retirement and pension payout to Pillay out of the pile.

So what might happen now?

Abrahams clearly rushed to very publicly prosecute Gordhan, Pillay and Magashula on October 11 (a day after meeting with President Zuma at Luthuli House) without having considered all the evidence available.

Why else then did the NPA send questions to the Hawks on October 17 (a week later) asking them to toddle off and interview Symington?

Was Abrahams careless? Stupid? Desperate? Is he fit and proper?

Did someone at the Hawks or the NPA accidentally fold the memorandum by Symington into a jet during an absent-minded moment and fling it across the room?

We might soon find out if Abrahams is fit and proper.

The HSF and FUL have suggested in their affidavit to the Pretoria High Court that they have not excluded the possibility that they will lay charges against the NPA head should he be found to have acted improperly or recklessly.

Abrahams could try to throw Moyane under the bus (if he can fit in there along with Pretorius) claiming that Moyane withheld information from the NPA, either the memorandum signed off by Simington as well as the legal opinion by Maphakela.

From the sudden flurry of activity it appears as if the NPA only became aware of Symington’s 2009 memorandum after HSF and FUL filed their affidavit.

But all of these documents have been on file at SARS for yonks. If the Hawks or the NPA failed to secure these then they are even worse than Keystone Cops.

Of course, the NPA and Abrahams (and Zuma by proxy) might be hoping to avoid November 2 – the day Gordhan is set to appear in the magistrate’s court – becoming a political rallying point.

But there is already a groundswell of support for Gordhan, who delivered his MTBPS on Wednesday in a manner many have described as “statesmanlike”. The Save South Africa Campaign, in a statement released on Thursday, said that the series of “gaffes” by the NPA, the Hawks and other parts of the criminal justice system were serving only one purpose – “to galvanise a growing number of groups and individuals towards the ‘People’s Assembly Against State Capture’ in Pretoria on 2 November.”

The Save South Africa Campaign consists of civil society groups, business leaders, prominent individuals, South African citizens and supporters of the founding principles of the country’s constitutional democracy. The campaign is currently working actively with political parties as well as liaising with organised labour, Business Leadership South Africa and the CEO Initiative which represents the leaders of South Africa’s top 100 companies.

“Numerous marches and protests will be able to converge at the People’s Assembly, on the corner of Bosman and Frances Baard streets, a few hundred metres from the Pretoria Magistrate’s Court, from 8am on Wednesday. There, protesters from across the political spectrum will join struggle stalwarts, dozens of civil society organisations, business, labour and thousands of individual South Africans around a common cause: the need to stop state capture in its tracks,” said the Save South Africa statement.

There is no doubt that there are those in government, including President Jacob Zuma, who would not be too keen on this “significant show of collective outrage”.

But there is no way Abrahams can announce a review of the charges before the event without ending up with an ostrich egg on his face. He would, in effect, be admitting to disastrous incompetence that has not only cost the country financially but also served to destabilise it politically. These could, in a certain light, be regarded as acts bordering on treasonous.

The HSF and FUL application and supplementary application for a review of charges will be heard in the Pretoria High Court a few days later on November 8. It is highly likely that the court will grant the review and that the charges will be set aside.

If this is the outcome then several limping buffalo – including Hawks Head Mthandazo Ntlemeza whose appointment has already been flagged by the DA as illegal and irrational – will be running from a very fierce and large gathering of South African citizens, the metaphoric pack of lions hunting.

We will let the Save South Africa Campaign end this story:

“Every day that passes provides further confirmation that the charges against Finance Minister Pravin Gordhan and former SARS official Ivan Pillay and Oupa Magashule are not just politically motivated, but are legally without any basis. They are an utter sham and without substance, and we believe the courts will find likewise. Because of their criminal collusion in manufacturing the charges against Minister Gordhan, we call for the immediate sacking of Shaun Abrahams and Tom Moyane.” 

Indeed. DM

(An earlier version of this story erroneously identified one of the Hawks as Colonel Leslie Maluleke)

Photo: NPA head Shaun Abrahams (GCIS), Finance Minister Pravin Gordhan (Greg Nicolson / Daily Maverick), SARS Commissioner Tom Moyane (GCIS)