Symington disciplinary hearing postponed after charges questioned

Johannesburg – There was more drama at SARS this week after a disciplinary hearing against senior employee Vlok Symington was postponed indefinitely due to questions surrounding the legality of the charges against him.

The hearing, which started on Tuesday, was postponed after the chairperson ruled that the High Court should decide on the legality of four counts of misconduct against Symington.

The legality centred around whether or not Symington’s disclosures were made to the Independent Police Investigative Directorate (IPID) under the Protected Disclosures Act.

Before the hearing officially began, Symington’s legal team brought an application asking for the inquiry to be dismissed or postponed until part B of Symington’s application is heard in the North Gauteng High Court in Pretoria in May next year.

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The application also requested that the chairperson appoint a new, independent initiator to the inquiry. Symington alleged in a supplementary affidavit that the prosecutor, who was also SARS' attorney of record in his High Court application, was "hopelessly conflicted".

Symington, a senior employee in the legal department at SARS, made headlines when he was allegedly held "hostage" in a boardroom at SARS in 2016 by members of the Hawks and SARS commissioner Tom Moyane’s bodyguard, Thabo Titi.

The incident took place at the height of the fraud charges laid against then-finance minister Pravin Gordhan. The men were attempting to remove a document given to Symington by mistake. It was an email sent to Moyane by SARS legal advisor David Maphakela which said he would not get involved in charging Gordhan.

In September, Symington brought an urgent application before the Pretoria High Court for an urgent interdict to stop the disciplinary inquiry against him. He said he should be protected as a whistleblower and the charges against him were unfair.

SARS argued that he was not a whistleblower and was not protected under the Protected Disclosures Act.

'Trivial charges of misconduct'

Judge Hans Fabricius said Symington had failed to make a case for an urgent interdict and dismissed his application.

In the affidavit, placed before chairperson Sha’ista Kazee, Symington pointed out what could be a serious conflict of interest with the prosecutor appointed to the hearing.

He said in the papers that, while the chairperson was independent, "the initiator, Mr Puke Maserumule, can hardly be said to be impartial or independent of SARS".

Maserumule was the attorney of record for SARS in the High Court application and he was also the prosecutor in the hearing against Titi.

"He therefore must have consulted extensively with SARS in taking instructions to oppose the matter, and in settling affidavits, deciding on strategy, and the like," the affidavit said.

The application also requested that SARS provide Symington’s attorneys with full details of all communication with Mothle Attorneys regarding their investigation into the boardroom incident and, in particular, details of SARS' instruction to the attorneys after receipt of the first investigation report.

Mothle Attorneys first recommended that Titi face disciplinary charges. But, in a second report, they included that Symington be charged, despite there being no complaint by Titi or SARS against him.

"SARS must have instructed Mothle Attorneys to amend the investigation report so as to incriminate me, thus demonstrating that the charges against me are not based on the outcome of an impartial investigation process, but rather arise from improper motives to discredit and dismiss me, by virtue of my having made the protected disclosures," he said in the affidavit.

Symington also alleged that SARS has indicated mala fides (to act in bad faith) towards him by charging Titi with "trivial charges of misconduct".

Application of substance

He said the charges should be intimidation and kidnapping.

Symington, on the other hand, has been charged with misconduct, which could motivate for his dismissal.

Titi, he said, was likely to receive no more than a slap on the wrist.

"This illustrates how SARS can manipulate the processes to favour Titi’s continued employment and my dismissal, despite having appointed an external chairperson," Symington said.

Symington added that, if the chairperson determined that the Hawks and Titi acted unlawfully and/or mala fide in their conduct towards him, "and that their conduct was motivated by their desperate need to hide damning evidence of Commissioner Moyane and Brigadier Xaba’s apparent involvement in a criminal conspiracy to frame baseless criminal charges against Former Finance Minister Gordhan", it would have a material influence on a determination as to whether he had satisfied the requirements for protection under the act.

ALSO READ: Symington charged by SARS for conduct, not whistle-blowing - court

Maserumule argued that the application was no more than an attempt by the employee to reargue the High Court application in an alternative forum. He submitted that all the issues raised in the application were determined by Fabricius in his judgment.

Kazee disagreed in her ruling, saying that the judgment did not determine all the issues presented to her.

She said it was an application of substance. She granted a postponement until the matter was heard in court next year.

"Mr Symington is placed in the position of having to defend himself in disciplinary proceedings that may be found to have been unlawful from its inception," she said.

Kazee however did not appoint a new initiator, although she described as "unusual" the dual role of acting for SARS against Mr Symington in the High Court application, prosecuting him in the disciplinary hearing and simultaneously consulting with him as a key witness in the charge against Titi.

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