Johannesburg - Vlok Symington, who was allegedly held hostage by the Hawks in a Sars boardroom at the time Pravin Gordhan was charged with fraud, has taken his employer to court in a bid to stop his “unfair” dismissal.
Symington, a Principal Specialist in the Legal Counsel Division of Sars, has worked at the organisation for 27 years. On Thursday, he filed an urgent application in the Pretoria High Court in which he seeks declaratory relief, and an interdict against pending disciplinary action that Sars has instituted against him.
In an affidavit Symington makes several disclosures under the Protected Disclosures Act revealing what happened to him in October 2016 and the potential implications this has for the country.
“I believe that I inadvertently find myself at the centre of the political storm surrounding Minister Gordhan, and the broader issue of state capture,” Symington said.
“I was handed a document and involved in an incident that raises the spectre of collusion by senior government officials and police officers, in efforts to discredit Gordhan,” he said in the affidavit.
The disclosures relate to events that took place on October 18, 2016 when he was stopped from leaving a boardroom by Sars Commissioner Tom Moyane's bodyguard and four Hawks officers.
Now he faces “unfair charges” of misconduct, a disciplinary hearing and dismissal from Sars.
He began his application by highlighting the events of state capture which placed Gordhan as the Minister of Finance.
“What then transpired was that the Commissioner of Sars, Tom Moyane, and Sars laid a criminal complaint with the South African Police Service against, inter alia, Gordhan in respect of the setting up of an alleged rogue investigative unit within Sars.”
On 11 October 2016, National Director of Public Prosecutions Advocate Shaun Abrahams announced charges of fraud would be brought against Gordhan, former Sars commissioner Oupa Magashule and former deputy commissioner Ivan Pillay.
FULL CHARGE SHEET: Pravin Gordhan accused of fraud
The fraud charges were related to the approval during 2009 of a request by Pillay that he be allowed to take early retirement and that he be appointed by Sars on a fixed term contract basis. Symington had furnished a legal opinion on this at the time saying the request was proper, did not contravene any statute, regulation, Sars rule or provision.
Pillay’s request was then approved by Magashula who was Commissioner at the time and Gordhan.
This memorandum became a central document in the dropping of criminal charges against Gordhan.
Dr Torie Pretorius, the NPA official in charge of the investigation composed a set of questions to Symington on the memorandum.
Symington described what happened to him on October 18, 2016 as “bizarre”.
His manager Kosie Louw called him in the morning and asked him to come to his office. He handed him a four-page document and told him the Hawks would be coming to see him and asked that he provide a response in the form of an affidavit to the NPA.
Symington said the first two pages were a letter from the NPA with questions and he concentrated on these. The last two pages looked like an email trail between the NPA, Hawks and Sars.
At about 10:00 he met with four Hawks officers. One of them introduced himself as Brigadier Xaba and another as Colonel Maluleka.
Symington said he asked them why it had taken them so long to ask him about the 2009 memorandum given all the media attention on the charges.
“Xaba then responded that, in fact, the Hawks had been in possession of the 2009 memorandum all along. At that moment, I did not appreciate the gravity of this remark, as my focus was on attending to the NPA’s questions,” he said.
Symington said he would attend to answering the questions immediately and his affidavit should be done by 13:00. They parted ways amicably and agreed to meet later.
While he was working on the affidavit at his desk he said he was confronted by an unidentified man who he had not seen before and assumed he was part of the Hawks.
“I learnt later that he was Thabo Titi, Moyane’s bodyguard.”
He said Titi demanded that he hand over the document he had with him. Symington said he was not finished with his response to the questions. He said he printed his incomplete affidavit and took it to the boardroom where the Hawks were waiting.
Xaba and the other Hawk offices demanded he return the documents given to him by Louw earlier in exchange for a copy of the same documents, which caused him confusion.
Titi blocked the door of the boardroom and refused to allow him to leave or allow people he had called for help to enter the boardroom.
“I became agitated and angry – I was totally bewildered as to why the same people who had asked me to respond to the questions contained in the bundle of documents and who had been aware that I had the bundle of documents in my possession since 10:00, were aggressively demanding the immediate return of the documents that I required in order to answer the questions.”
"The situation escalated and he called his secretary and Sars security for assistance. Titi refused them access to the boardroom.”
He then started video and audio recording the events on his cellphone.
Symington said at one point Xaba said it was not the NPA letter but the attachments to the letter that they needed to be returned.
Symington inadvertently recorded the emails, which he said in hindsight contains evidence of possible criminal conduct.
'Wrestled the documents from my hand'
Eventually, Louw and two Sars colleagues came in and Symington walked out the room, but then the Hawks grabbed him “twisted my arm and hand, and wrestled the documents from my hand”.
They then left with the documents.
“Needless to say, I was extremely upset and traumatised by what had transpired. I had no idea why the Hawks had demanded the return of the documents, to the point of holding me against my will and assaulting me, or why my employer had not objected to this conduct and protected me.”
He reported the matter to the Independent Police Investigative Directorate (IPID).
It was an email trail indicating that instead of forwarding the email from Pretorius directly to Sars, Xaba sent it to an attorney in private practice, who then forwarded it to Moyane “with a highly suspicious statement that he could not be involved any further for ethical reasons”.
The email was sent from Xaba to D Maphakela of M4 Attorneys who forwarded the email to Moyane with the message “… On ethical reasons, I cannot be involved in this one, as I hold a different view to the one pursued by the NPA and Hawks”.
Ipid investigated and recommended to the NPA that charges be brought by the NPA against Titi and the Hawks.
Symington said he is concerned that the prosecutions will not be brought due to possible political interference.
“I am advised that the prosecutor charged with prosecuting these individuals has recently had his office burgled and laptop stolen.”
Symington said that the statement by Xaba saying they had the 2009 memorandum all along indicates that the Hawks “probably deceived the NPA by deliberately withholding exculpatory evidence”.
He submitted a formal grievance against Titi at Sars and he was told an independent firm of attorneys would investigate his grievance.
In the attorney’s initial report Symington said he was exonerated from wrongdoing and they recommended that action be taken against Titi. He said he heard nothing further until July 25, 2017, when he and Titi were sent an email with an attached “addendum report” from the attorney.
This said that charges be brought against both of them.
“This came as a complete surprise to me,” Symington said. He said the investigation had clearly been expanded to investigate his own conduct. This expanded mandate was never communicated to him and he was not provided an opportunity to make representations.
He said this showed Sars had instructed the attorney to come up with charges against him after the first report exonerated him and concluded that there was merit to his grievance against Titi and that he should face disciplinary action.
He said no complaints had been made against him by Titi, Moyane, Louw or anyone else at Sars and he called what happened to him as a witch hunt.
“I was effectively condemned without a hearing.”
He said the addendum report contains damning findings against him including that Titi in no way prevented him from leaving the boardroom. It was recommended he be charged with insubordination, use of profanity, bringing Sars into disrepute and he was the prime suspect in leaking the audio and video recordings to the media.
Symington denied this saying he did not know who had leaked it to the media.
He believes he has inadvertently been caught in the middle of a political storm and is being targeted for being handed a document that in all likelihood showed a “conspiracy within elements of the Hawks (and possibly within Sars) to defeat the ends of justice by seeking to manipulate the investigation process”.
This is amplified he said by the contents of the email, attached to the questions from the NPA, that was accidentally handed to him.
Sars spokesman Sandile Memela said they could not comment now that the matter has been referred to the courts.