SARS Wars: Tom Moyane soon under the Spotlight

If we topple the dominoes as NPA head Shaun Abrahams did during his presser on Monday announcing the withdrawal of charges of fraud and theft against Gordhan, Pillay and Magashula, the first in the row to tip should be NPA Special Acting Director and head of the Priority Crimes Litigation Unit, Dr Torie Pretorius, whom Abrahams has fingered as recommending the charges in the first place.

Next in line is Hawks head of Crimes Against the State Unit, Brigadier Nyameka Xaba, who was tasked with investigating the matter and whose job it was, we take it, to secure all the evidence available before the NPA made the very bold move of publicly, on national television, announcing the high-profile prosecution of the country’s sitting Minister of Finance.

The Hawks have been very industrious since February this year, targeting, it appears, one man who they clearly believed posed the biggest threat to the stability of the country: Finance Minister Pravin Gordhan.

The Hawks had months to interview witnesses and secure relevant documents. This they apparently did. Pretorius at the NPA must have been satisfied because there must have come a day when he emerged from his office in Silverton smiling and giving Abrahams the thumbs up.

Abrahams called the press conference (a day after meeting with Zuma and other ministers at Luthuli House) to announce that the days of disrespecting the NPA were over and that Gordhan, Pillay and Magashula were being charged.

Finish and Klaar. Because I say so.

That day, October 11, came and went. By nightfall markets had plunged and the political collateral damage rippled ever further outwards as more and more ANC members began to locate their spines and their voices and came out in support of Gordhan.

Then in mid-October, lobby groups the Helen Suzman Foundation (HSF) and Freedom Under Law (FUL) applied for a stay of prosecution and forwarded their affidavit and supporting documents to Pretorius at the NPA.

It was the first time, his boss Abrahams revealed on Monday, that anyone, ANYONE at the NPA had had sight of the crucial Symington Memorandum.

Eager to find out more, Pretorius had requested the highly professional Hawks to interview Symington. Xaba shot off a communication to SARS’s legal firm Mashiane, Moodley and Monama. The firm’s David Maphakela didn’t reply to Xaba; instead he sent his client, SARS and Tom Moyane, an emphatic e-mail saying he did not ethically agree with the prosecution of Gordhan, Pillay and Magashula.

We should stop at this point to reflect on why it was that the NPA was not handed all the evidence it says it needed and why it was so surprised to find the Symington Memorandum.

What could have happened to the Symington Memorandum between Moyane laying his charge in March 2015 and Abrahams announcing the prosecution on October 11?

Perhaps someone at SARS used it as a place mat for their coffee cup.

Point is, Tom Moyane, as head of SARS, would have had access to all the necessary documents, e-mails and internal memoranda. Let’s hope (for his sake) he didn’t withhold the Symington Memorandum, this scrap of crucial exculpatory evidence.

He’d be deep in the dwang if anyone found out that he may have done so deliberately.

The strange incident with the Hawks’ men in pink shirts in the SARS boardroom trying desperately to retrieve from a startled Vlok Symington the e-mail by Maphakela that had been accidentally attached to the NPA letter, certainly implicates Moyane. Calls are made to his office across the way from the boardroom and there are lots of “yes sirs”.

Already Moyane is in trouble for allegedly keeping schtum about a Financial Intelligence Centre (FIC) report sent to him in May this year about suspicious payments of around R1.2-million into the personal accounts of his No 2-in-command Jonas Makwakwa and his girlfriend Kelly Ann Elskie.

Moyane, instead of alerting the Directorate for Priority Crime Investigation – as this surely ranks as a priority crime – decided to “afford” Makwakwa and Elskie “an opportunity to respond to the allegations against them” as part of “the internal investigative process”. His actions could be deemed to be in violation of sections of the FICA Act and PRECCA (Prevention and Combating of Corrupt Activities Act).

When news of the scandal broke, both SARS and the Hawks repeatedly told Daily Maverick in e-mails in September this year that the entire Makwakwa matter was “internal”. Four months later legal firm Hogan Lovells was looking into it rather than the Hawks.

Thrice Hawks spokesman Brigadier Hangwani Mulaudzi reiterated to Daily Maverick that the Hawks were not investigating, even when we supplied a case number (CAS 3/6/2016) and asked whether the investigating officer was Colonel Herby Heap.

Brigadier Mulaudzi at one point even “took exception” to the “tone” of one of our e-mails.

Meanwhile Corruption Watch has written to Monyane informing him that “we regard your stance on this issue [Makwakwa and Elskie], which is that it is an internal one which does not require reporting to the DPCI, as being unlawful and we intend lodging a criminal complaint against you for the stated offences.”

Moyane’s response to Corruption Watch contains this jarring revelation:

“I am aware of my legal obligation to refer this matter to the South African Police Service (“SAPS”) for criminal investigation, as required by Section 34 of the Prevention and Combating of Corrupt Activities Act 12 of 2004 (PRECCA). However, upon an enquiry and before I could report this matter to the SAPS, I was advised by the Directorate for Priority Crimes Investigation (the Hawks) that the matter had already been referred to the SAPS for investigation during early June 2016.”

Someone is lying or maybe they’re just confused; there is so much to hold on to in this tawdry, sprawling narrative.

In light of the monumental cock-up and the abysmal level of service from the Hawks and the NPA with regard to the Gordhan, Pillay and Magashula charges, it is perhaps to be expected that inside the Hawks the right hand might not know what the left hand is doing or if they even have hands at all.

Moyane, who is close to President Zuma, is a key player in all of this mess.

He started it all by lodging the initial charge with SAPS. Moyane is also responsible for the major restructuring at SARS alongside Makwakwa, a move Gordhan has sought to prevent, and a move that appears to have turned a once sleek and efficient state institution into one that is knee-capped by fear, mass resignations and the purging of investigating staff who once raked in billions in unpaid taxes from criminal syndicates, wealthy individuals and the politically connected.

If the revelations of the depth and breadth of the Gupta family’s alleged State Capture had been made when Pillay was the Acting Commissioner it is highly likely that the High Risk Investigative Unit would have gone after them.

That is why it had to be discredited and disbanded.

SARS insiders say Moyane’s restructuring has made it impossible to deliver on projects. A simple overview of projects up until 2014 will prove that the rate has dropped by at least 75%. Large numbers of experienced staff members were all forced to reapply for their jobs and many were not re-employed. Some – seasoned investigators – were demoted and knee-capped in terms of their investigative mandates.

And while the collapse might not be visible just yet, it soon will be when systems begin to fail in an institution which lacks strategic direction and where its Commissioner appears to be embroiled in deeply political matters.

The country cannot afford a Revenue Service that is unable to deliver to the fiscus so that the State can do its job.

But Moyane is also not done with Gordhan and Pillay yet.

In August this year he appointed Grant Thornton, an assurance, tax, advisory and outsourcing service, specifically to conduct an “independent preliminary forensic investigation” of all tenders for the Modernisation and Technology Programme from 2007 to 2014. The appointment of the firm was only acknowledged after media reports that a SARS union representative had confronted management wanting to know whether members were at risk.

Gordhan was SARS Commissioner from 1999 to 2009 and Pillay served as Deputy Commissioner from 2010 and became acting commissioner in 2013 when Oupa Magashula resigned after a scandal. Pillay was the SARS executive accountable for enforcement compliance and risk.

The Grant Thornton investigation has been unofficially named “Operation Lion” and has seen SARS staff being interrogated and spending much of their work time defending projects initiated as far back as 2006. SARS insiders say that staff work in a climate of fear and claim that their e-mails and correspondence are monitored.

Moyane has acted swiftly since being appointed to the position by President Zuma in September 2014. Within months he had managed to purge the entire SARS top executive after reports of a “rogue unit” began appearing in the Sunday Times.

Just six months in the hot seat and Moyane orchestrated a massive review of the SARS operating model and called in consultants Garter, Bain & Co as well as KPMG to conduct this overhau,l at the cost of around R300-million. These consultancies were not put out to tender and were signed off by Moyane.

Moyane also later appointed, in three weeks instead of the usual three months, KPMG to conduct a “forensic overview” of the rogue unit allegations. This cost taxpayers R26-million. The report has still not been released. At the time KPMG did not declare that it acted as the auditors for British American Tobacco, one of the companies implicated in the entire SARS “rogue unit” accusation.

The Democratic Alliance’s Shadow Minister of Police, Zakhele Mbhele, said on Monday that the Police Department had spent “more than R17-million on political witch hunts targeting individuals who have fallen out of favour with Jacob Zuma or his acolytes”.

A breakdown of where taxpayers’ money has gone was revealed in a reply to a DA parliamentary question as to amounts spent on civil litigation and internal disciplinary proceedings.

It shows that R3.3-million was spent hounding Johan Booysen, suspended KwaZulu-Natal Hawks commander; R6.7-million on Robert McBride, director of the Independent Police Investigative Directorate (IPID); almost R6.4-million on Shadrack Sibiya, former Gauteng Hawks head; and R829,000 on Anwa Dramat, former national head of the Hawks.

“In each case, the courts found there was no case against these individuals. The State has lost more than five times in trying to get rid of Booysen on baseless claims,” said Mbhele.

He added that politically motivated witch hunts continued to compromise the integrity of South Africa’s institutions.

Meanwhile the EFF as well as former ANC treasurer, Mathews Phosa, announced that they will be applying to the General Council of the Bar to have Abrahams struck off the roll. The EFF added that the meeting with Zuma and other ministers by Abrahams the day before he announced the charges was inconsistent with the Constitution.

With an increasingly cornered and unpredictable President Zuma on the back foot in a highly fluid political landscape, anything is still possible. Meanwhile, South Africans have promised to come out in their thousands on Wednesday to show support not only for Gordhan but “for the rule of law”.

After yesterday’s announcement by Abrahams, City Press journalists Abraham Mashego and Muhammad Hussain made the unsurprising revelation that Gordhan was still in the Hawks’ crosshairs and that the paper had established that the Hawks investigative unit assigned to the “rogue unit” case had employed more personnel. We have no doubt that they will be of the same calibre and cut from the same cloth as those who investigated the fraud and theft charges against Gordhan, Pillay and Magashula and overlooked the Symington Memorandum. DM