Rehashed rogue unit case: a deliberate delay of return to SARS

The National Prosecuting Authority advocate Shaun Abrahams. (Jaco Marais, Gallo Images, Rapport)
The National Prosecuting Authority advocate Shaun Abrahams. (Jaco Marais, Gallo Images, Rapport)

Wayne Duvenage

On Monday, April 9, 2018, Ivan Pillay, Johann van Loggerenberg and Andries Janse van Rensberg will appear in the Pretoria Regional Court, having been summonsed and charged by the National Prosecuting Authority (NPA) for alleged events dating back ten years ago and involving an alleged amount of R100 000. 

The charges of this matter stem from a case (CAS 427/5/2015) that was opened at the Brooklyn Police Station almost three years ago, and is the same case number used in the botched prosecution attempt against former finance minister Pravin Gordhan, former SARS commissioner Oupa Magashula and former deputy SARS commissioner Ivan Pillay in 2017.  

In that matter, the NPA had to capitulate before the case got to court and National Director of Public Prosecutions, Advocate Shaun Abrahams, admitted that the matter could have been resolved had the Hawks, NPA and those who stood accused, communicated better. 

It would appear that next week’s case could very well be history repeating itself, with not much being learnt from their previous folly. What makes matters worse, is that this matter has occupied the time and personal attention of several senior heads within the NPA and the Hawks for almost three years, and once again the authorities haven’t even bothered to check in with the accused for their account and version of the events. Obtaining representations from those accused of criminal conduct is not a matter of courtesy, it is a legal requirement of those doing the prosecuting. 

The questions one must ask of the NPA, is why would they go against their own prosecution policy and not obtain for consideration the version of events from those being charged, before the decision to prosecute was made? And had they done so, these charges probably would not have attracted another minute of their time. Fortunately, the NPA recently acceded to the accused’s request to obtain their version of events, making Monday’s court appearance a formality, however the charges are still in place, for now. 

I’m not for one minute advocating that Van Loggerenberg, Pillay or Janse van Rensberg must not be tried for crimes committed, if indeed these are reasonably motivated. All are indeed equal before the law and these people don't deserve any special treatment. If there is a case to be answered, let it be so. 

My guess however, is that this case is a non-issue and it has been raised for one reason only; to prevent the trio from being re-employed at SARS for as long as possible. It’s no secret that if the return of these three ex-employees was to happen, it would not take long for Van Loggerenberg and Pillay to re-open and advance the many cases of tax evasion and unlawful conduct against connected people and known criminals.

Even Jacob Zuma would be pressed to answer questions relating to the shocking state of his personal tax affairs and Tom Moyane himself would not escape scrutiny for his probable unlawful conduct. 

When comparing the effort and action taken by the state in this 'trumped up' case of the ex-SARS trio, to the sheer lack of effort applied by the NPA in matters and cases involving many current and ex-ministers and executives of state-owned entities, one must ask, "Why is this so?" 

Civil society and political parties have laid numerous charges against many in positions of power at Prasa, Transnet, Eskom, Denel, SABC, SAA, Water and Sanitation, SAPS, SARS and elsewhere, who were directly implicated in tens of billions of rands lost to the country. And yet they roam free, enjoying their spoils and ill-gotten gains, ignored at large by the NPA and the highly placed officials at the Hawks. 

The shortfall of SARS collections over the past three years has been exponential – from R11bn in 2015/16, to R22bn in 2016/17. This year, that figure has doubled to R42bn. Many believe these shortfalls could easily have been obtained by SARS, had its suspended head Tom Moyane not decimated the investigative competence and collection expertise injected by Van Loggerenberg and Pillay. By purging them from SARS, a number of tax evasion cases against politically connected individuals have fallen by the wayside and tens of billions of rands have been lost to the tax-man. 

This is the time to show solidarity and apply pressure to those in authority to do the right thing. It is time to free our courts from the clutter of triviality and to fast track the meaningful, sizable cases pertaining to the big time corruption and place the real thugs behind bars. 

President Cyril Ramaphosa’s recent appointments at SARS has signalled the first steps to 'uncapture' SARS and return efficiency and high standards to tax collection. I have no doubt the tsunami of arrests and asset seizures, along with the collection of billions will escalate, as soon as the expertise and institutional knowledge of Ivan Pillay, Johann van Loggerenberg and Andries Janse van Rensberg is returned to SARS. 

All that stops this from happening, is for the NPA to genuinely hear the accused's responses to the allegations against them and then, to either undo the farce or have the matter heard in court soonest. 

I personally believe the case will be dropped, following which South Africa can benefit from their re-employment and the repair of this broken institution. 

- Duvenage is founder and CEO of Outa, the Organisation Undoing Tax Abuse.

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