Update: Prosecutors asked for a postponement to allow their boss to consider recommendations that there are no prospects of a successful prosecution. The case was postponed to February.
Three former executives of the SA Revenue Service (Sars), will have to wait until next year to know if they will face a criminal trial for their role in the activities of the so-called rogue unit.
Tomorrow, the Pretoria Magistrates’ Court will be asked by the National Prosecuting Authority (NPA) to postpone the case against Ivan Pillay, Johann van Loggerenberg and Andries Janse van Rensburg.
The postponement will allow NPA boss Shamila Batohi to consider recommendations of a review panel which was tasked to look into the prospect of success for the case.
The panel, City Press understands, has recommended that the case against the trio be dropped because “there is no prospect of a positive prosecution”.
A senior NPA official said the panel headed by advocate George Baloyi – which had previously reviewed criminal charges against former KwaZulu-Natal Hawks head Johan Booysen – made its decision a while ago.
An NPA insider privy to the details of the panel’s recommendations to Batohi, said: “The prosecutors have asked for more time to allow advocate Batohi time to peruse the recommendation.”
NPA spokesperson Bulelwa Makeke on Friday said: “The Sars matter you refer to will be postponed. I am not in a position to respond to the rest of your inquiry, it’s premature. Like we did with the previous review by the NDPP [national director of public prosecutions], we will communicate on the relevant details and the decision when the process is complete.”
The trio’s lawyer, Bernard Hotz, said he submitted “compelling” representations to the NPA not to prosecute his clients.
“We made it very clear that in fact there were no charges that were supposed to be laid against my clients.”
Hotz explained that preliminary representations made in March last year were handed to the state on Wednesday.
But, the activities and the formation of the so-called rogue unit remain the subject of a separate matter in the Pretoria High Court.
Last month, EFF leader Julius Malema filed court papers accusing State Security Minister Ayanda Dlodlo of dusting off an “old apartheid secrecy statute to try to stop the public reading” of the 2014 inspector general of intelligence report confirming the alleged rogue activities of the Sars investigative unit.
Public Protector Busisiwe Mkhwebane sided with the EFF in her affidavit filed on Friday, stating that the publication of the inspector general of intelligence’s report was “necessary in the review application and demonstrates the reasonableness of my findings”.
In a July report, Mkhwebane found that the so-called rogue unit existed and those involved in its establishment, including former Sars commissioner Pravin Gordhan, must be sanctioned.
The EFF wants the court to order that the inspector general of intelligence’s report be publicly shared, saying the party is entitled to have the report.
The party insists that the law Dlodlo relied on was unconstitutionally vague and overbroad and accordingly invalid.
It intends to argue that on a constitutionally compliant interpretation of that section, publication of the report is not prohibited.
If that interpretation is not sustainable, then the EFF intends to argue that the section is unconstitutionally vague and overbroad and is an unjustifiable infringement of, inter alia, section 32 of the Constitution.
Malema said that “in today’s age of free and fast-flow of information, government should always err on the side of transparency”.
“The minister is attempting to claw the inspector-general’s report back from the public domain.”
Mkhwebane, in her affidavit in support of the EFF to have the report made public filed on Friday, said the state security minister had previously undertaken to provide her office with a declassified copy of the report but later backtracked.
“To date, I have not received the inspector general of intelligence’s report, and I have not been informed of the basis on which that undertaking was not carried out.
“There is no legal or constitutional basis on which it is justifiable to interdict the release and publication of the inspector general of intelligence’s report as it is already in the public domain by virtue of it being referenced in this application and further since the publication of my report,” she added.
The three former Sars executives face charges of corruption, racketeering and fraud relating to an operation dubbed “Project Sunday Evenings” which allegedly saw the illegal installation of covert cameras and microphones at the offices of the now defunct Scorpions and the NPA’s offices in Silverton in 2007.
Former Sars employee Helgard Lombard, who has turned a key state witness in the case, admitted that he installed the hidden cameras which were remotely accessible.
Lombard, who has been on suspension since 2015, said he was paid R900 000 to install the cameras, and a further R250 000 for providing encrypted cellphones to members of the Scorpions.
The case against the trio was opened in March last year by former Sars commissioner Tom Moyane.
- In the original version of this article, based on the information received from the accused's lawyer, we reported that the case would be postponed to November. However, during the appearance before the High Court in Pretoria on Monday the case was postponed to February 2020.