Lackay's CCMA case places spotlight on SARS

2017-04-18 17:01
Adrian Lackay (Sarel van der Walt/Netwerk24)

Adrian Lackay (Sarel van der Walt/Netwerk24)

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Johannesburg – The tectonic shifts that took place in South Africa's political landscape over the last two weeks have so absorbed the public sphere, that some of the smaller, but just as important happenings in our country, went almost unnoticed.

One of them took place in a boardroom on the sixth and eighth floor of the Commission for Conciliation, Mediation and Arbitration (CCMA) building, where former SARS spokesperson Adrian Lackay was facing cross-examination in a case he laid against SARS for constructive dismissal.

Lackay revealed a lot of what went on behind the scenes at SARS when its commissioner Tom Moyane first started the job in the midst of the onslaught of the rogue unit debacle in 2014 and 2015.

Lackay, who had worked at SARS for 11 years, argued that his working conditions became unbearable amid allegations of the rogue unit's existence, and that he was forced to leave after it became untenable to associate himself with the goings-on at the revenue service. He resigned in February 2015.

In January, when Lackay first gave evidence, the CCMA boardroom was filled with journalists, but as weeks passed, and with the enormously important national events which have taken place between then and now, the number of journalists dwindled. What they and the public missed was Lackay's revelations that, not only did Moyane not fight back against the rogue unit allegations – he, according to Lackay, "tacitly approved them".

Lackay in fact went one step further by saying that Moyane's right-hand man at the time (before he was suspended after it publicly emerged that there were suspicious transactions in his bank account), acting chief operating officer Jonas Makwakwa, said at a Government Communication and Information System (GCIS) meeting that Lackay was a problem in the communication department at SARS because he was denying that a rogue unit existed.

Worrying revelations

Lackay argued that Moyane changed offices, making himself inaccessible and that he (Lackay) was increasingly being left out of the loop on important events at SARS, such as the suspensions of deputy commissioner Ivan Pillay, at a time when – as the spokesperson of the organisation – he was being bombarded with queries from the media.

The advocate representing SARS, Wisani Sibuyi, in turn put it to Lackay during cross-examination that the former spokesperson was being unfair to Moyane, who had just started in the position, and that the reason why Lackay left was because he was friends with Pillay and he was upset when Pillay was suspended. Sibuyi said the Sikhakhane report showed there had been a rogue unit.

Sibuyi said this was embarrassing for Lackay because he had been publicly denying the rogue unit's existence for years.

However, Lackay stuck to his story and the more questions Sibuyi asked him, the more worrying revelations emerged of the inner workings of SARS at the time.

Lackay insisted that when Moyane first started at SARS at the beginning of October 2014, he was welcomed by staff and that they had worked well in the first few weeks together.

By October 12, when the first story mentioning a rogue unit appeared in the Sunday Times, Lackay testified that he and a team of senior employees had briefed Moyane on intelligence documents named "Operation Snowman" which had been disseminated to the media by previous employees.

President's office briefed

"The relationship at this point was good. He seemed to accept our explanations on the history of the matter. There was no animosity," Lackay said.

Interestingly, Lackay also revealed that the president's office was being briefed on the allegations at this point. Lackay said he worked closely with the president's then-spokesperson Mac Maharaj.

Lackay said the media strategy had always been to meet with any journalist or editor who showed an interest in the dossiers and be open with them about where they came from.

However, that would change as, according to Lackay, he was deliberately not told important information that he needed to answer media queries and Moyane became increasingly unavailable.

Moyane moved to another office block, which needed access card admittance and Lackay said Moyane did not answer his emails.

Instead, Makwakwa and executive Luther Lebelo were increasingly being asked to do Lackay's job, despite them never having conducted media interviews before, the former spokesperson said.

"From the beginning of December 2014, until February 2015, Mr Makwakwa was appointed on an acting basis as chief operating officer. Together with Mr Lebelo, he worked closely with Mr Moyane. He was instrumental, I believe, in the suspension of a number of SARS employees," Lackay testified.

'Veiled threat'

Lackay said that Lebelo "projected an image that everything is well at SARS and that there is not instability. He said the leadership remained 'rock solid', to use his exact term".

Lackay said his experience at SARS made him disagree, and that Lebelo was being untruthful.

Moyane did nothing to counteract, or investigate the allegations in the media that SARS was running a rogue unit.

Lackay sent Moyane an email saying he was concerned about internal leaks to the media and asked that this be investigated.

His email was not responded to. Instead, Moyane publicly stated he did not take kindly to emails about leaks and how they should be investigated, Lackay said.

"At the very least, I expected to be called for a discussion," Lackay said of Moyane, following the email.

"I perceived this to be a veiled threat, albeit indirectly, to me. This was a person, I realised, who would make no effort to challenge even the most outrageous headlines and protect the integrity of the institution," Lackay said.

Tacit approval of unit

Sibuyi pointed out that Moyane was commissioner – it was his prerogative if he wanted to challenge the media articles or not.

"It is his prerogative if he has no real interest in addressing the leaks, and especially in addressing the narrative of there being a rogue intelligence unit in SARS. There was very little, if any, effort made to challenge the articles and address how and why this information was coming to the newspaper," Lackay responded.

Lackay went one step further and said that Moyane had given tacit approval to the rogue unit storyline.

Lackay said denying that the rogue unit existed was not the message SARS management wanted to convey to the public.

This was the message given at the GCIS meeting, where he was identified as the problem in the communication that the rogue unit did not exist.

"That through me SARS was denying the existence of such a unit publicly. Management clearly identified me as portraying the wrong message on the rogue unit – its denial," Lackay said.

Climate of fear, anxiety

The former spokesperson said that, in his experience, there was nothing covert about the national research group, one of the names the "rogue unit" held.

Lackay had worked with them years before on an abalone project in KwaZulu-Natal. He had been tasked to communicate to the public on the investigations the unit, which was also working with local law enforcement, had completed. This showed the unit was well known in the public space, Lackay indicated.

The former spokesperson's testimony indicated that, at this time, there was a climate of fear and anxiety at SARS.

Moyane himself was convinced that his emails were being intercepted and blocked, and he seemed to believe a story which ran in the Sunday Times saying that SARS ran a brothel. Shortly after the story appeared, Moyane suspended the SARS executive committee team, Lackay said.

It wasn't just the exco that was suspended. Lackay told the CCMA that after Moyane was appointed as commissioner, between September 2014 and March 2015, 55 senior managers left SARS, including Pillay and chief operating officer Barry Hore.

Lackay was not immune to this anxiety. He said that, before he left SARS, he was told twice that disciplinary action would be taken against him and that a job had been advertised with a "more or less" similar description to his own job.

Five SARS witnesses

Sibuyi pointed to the fact that Lackay had written in his letter of resignation that he was leaving SARS for "personal reasons and other work opportunities".

Lackay replied that, in his resignation letter, he had written something that would allow him an easy exit from the revenue service. He feared "immediate dismissal or that another form of disciplinary charges" would be brought against him.

Lackay said he had found out that, after Hore had resigned and was serving his month's notice, SARS had pursued a disciplinary case against him.

"By the 19th of February those things weighed heavily on my mind. There was a general climate of fear, anxiety and uncertainty at the head office. I was not going to take any action in resigning that would provide a reason for the employer to act against me," Lackay said.

Sibuyi said SARS had never pursued the case against Hore and that there was no basis for Lackay's fears that he would be disciplined.

Lackay disagreed and said he was not alone in feeling anxiety as an employee at SARS during that period.

Sibuyi indicated that they would be bringing about five witnesses as part of their case against Lackay.

Lebelo, Makwakwa and Moyane might be among them when the case resumes on June 5. It is possible new revelations will emerge then.



Read more on:    sars  |  adrian lackay  |  tom moyane  |  johannesburg

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