The SA Revenue Service (Sars) ignored legal advice that its agreement to settle the legal bill of senior employee Vlok Symington was questionable because it was an “effective waiver and substitution” of a court order that Symington pays the agency for his failed application.
Details of the “confidential” settlement agreement between Sars and Symington are contained in a document dated May 11, in which the agency undertook to abandon “its right to the costs awarded in its favour” by Judge Hans Fabricius, following Symington’s unsuccessful bid last September to block disciplinary charges against him. A new court order was made on the same day.
In August last year Symington was allegedly held hostage by the Hawks and suspended Sars commissioner Tom Moyane’s bodyguard in a boardroom at the time when then finance minister Pravin Gordhan, now state enterprises minister, was charged with fraud. Symington had approached court to prevent an “unfair” dismissal.
Records showed that Symington was expected to pay Sars at least R300 000 for its legal bills. In terms of the settlement agreement, Sars would pay both its lawyers and those of Symington. At least R750 000 was tabled as half of Symington’s costs for the two-part case, meaning the entire transaction could cost the taxpayer in excess of R1 million if Sars’ costs were factored in.
Sars acting commissioner Mark Kingon and employee relations executive Luther Lebelo took responsibility for the controversial decision, but other Sars executives “vehemently opposed it and distanced themselves [from it]” at an executive committee meeting on May 29, City Press learnt.
Lebelo, a known ally of Moyane, came under fire for the decision. Among the issues raised in the May executive meeting was that head of legal affairs Refiloe Mokoena had been excluded from the decision. Chief financial officer Johnstone Makhubu complained he had not been given sufficient details about the transaction. Chief officer for enforcement Hlengani Mathebula also disagreed.
Kingon’s involvement raised eyebrows as he was on record saying he enjoyed a “friendship” with Symington, which was seen as acknowledgement of a conflict of interest. But Sars spokesperson Sandile Memela denied Kingon’s involvement.
“Kingon did not involve himself whatsoever in the decision to settle the matter with Symington, hence the settlement was negotiated by officials from legal counsel and employment relations as delegated,” said Memela.
He said both Kingon and Symington were senior colleagues at Sars for more than 20 years “and hence have a collegial relationship”. He said Kingon referred the matter to Lebelo’s office only because he had a “mandate to clean up a legacy of expensive litigation that was severely damaging the image and reputation of Sars”.
He said the intention was “to avoid potentially expensive dispute(s) not forming the core mandate of Sars”. He said the payment had not been finalised as the bill of costs was yet to be taxed. “The decision to settle potentially saved Sars expensive legal costs and mitigated Sars’ reputational damage,” said Memela.
According to records, Lebelo negotiated that the Symington settlement exclude the statement he was “held without his will” in the alleged hostage drama, saying the statement was in dispute. Lebelo also wanted the settlement to include the withdrawal of “private prosecution” against Moyane’s bodyguard, Thabo Titi.