Sars lawyers okayed Pillay’s early retirement

2016-10-16 18:00
Ivan Pillay

Ivan Pillay

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Absolutely nothing prevented the SA Revenue Service (Sars) from reappointing its former deputy commissioner, Ivan Pillay, on contract after he decided to take early retirement.

This was the legal advice Sars obtained from its own legal and policy division long before Pillay took early retirement.

The approval by Finance Minister Pravin Gordhan of Pillay’s decision to retire, and that he was subsequently rehired, forms the basis of the fraud charge against Gordhan, which was announced by National Director of Public Prosecutions (NDPP) Shaun Abrahams on Tuesday.

But an internal Sars memorandum – which has been attached to a letter threatening the National Prosecuting Authority (NPA) with legal action over the charges against Gordhan – reveals Sars’ legal division okayed the retirement and his subsequent rehiring more than a year and a half before Gordhan approved it.

The memorandum, dated March 17 2009, states that “no technicality prevents Sars from appointing him [Pillay] on a contract after his retirement [from the Government Employees’ Pension Fund]”.

The memorandum is annexed to a letter written to Abrahams by lawyers representing nongovernmental organisations Freedom Under Law and the Helen Suzman Foundation on Friday, in which they demand that the “baseless charges” against Gordhan be withdrawn.

The organisations want Abrahams to either withdraw the charges or give reasons and evidence for his decision to prosecute so that it may be challenged in court.

In the letter to Abrahams, the organisations’ attorney, Vlad Movshovich, cites Sars correspondence, which indicates that more than 3 000 other government employees took early retirement with full benefits between 2005 and 2010.

Movshovich asks that Abrahams furnish “a list of all cases that have been or are being criminally prosecuted, or are being considered for criminal prosecution, which relate to state employees taking early retirement and being rehired”.

“Your conduct in pressing baseless charges against the minister of finance has, and continues to have, devastating consequences for the republic and its economy,” reads the letter.

Meanwhile, in a statement issued on Friday, Gordhan’s lawyers said he would not be making representations to Abrahams about the charges.

“The main reason for his decision is he does not have any confidence in the NDPP’s ability or willingness to afford him a fair hearing,” they said.

This followed Abrahams’ telling Parliament on Wednesday that “Pravin Gordhan can submit representations to me and ask me to review the matter, and I will certainly look into the matter”.

Criminal defence attorneys and advocates polled by City Press this week were sceptical about the NPA’s prospects of successfully prosecuting Gordhan.

Criminal defence attorney Ulrich Roux said he did not foresee the state succeeding with the fraud charge, and that the chance of the alternative theft charge “sticking is zero to none”.

Roux said Gordhan had acted within his powers when he approved Pillay’s request.

“If you look at the regulations of the Government Employees’ Pension Fund, this is something that happens on a regular basis,” he said.

“If you look at Shaun Abrahams’ press conference [in which charges were announced], he said the investigation is still pending, but then how did he
issue the summons in the matter?

“Then a day later, bizarrely, he states in Parliament that he is willing to reconsider the charges, thereby backtracking completely. That’s just an indication of an abuse of power.”

William Booth, also a criminal defence attorney, said: “My view is there is absolutely no chance of the case succeeding if it goes to trial.

“It seems these are not charges related to criminal activity, but more in the nature of civil law or dealing with issues pertaining to human resources,” he said.

Advocate James Grant, a former criminal law professor, said the matter would depend on what evidence the NPA had, something that was not yet in the public domain.

“One does wonder why the NPA would lay what appears to be such obviously silly charges, unless they had good evidence,” he said.

Read more on:    sars  |  ivan pillay

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