The Public Protector’s findings regarding former SARS commissioner Ivan Pillay are legally and factually incorrect and showed a lack of understanding of the revenue service as an institution, his lawyer said.
A statement drafted by Pillay’s lawyer, Bernard Hotz, shortly after Busisiwe Mkhwebane announced her findings, stated that his client “emphatically denies all of the findings, which are factually and legally flawed”.
Earlier on Friday, the Public Protector released her final report regarding her investigation into allegations of maladministration, corruption and improper conduct by SARS.
In the report, the Public Protector found that:
The establishment of the intelligence unit was unlawful;
Pillay had already begun recruiting members for the intelligence unit before former SARS commissioner Pravin Gordhan submitted a memorandum to former finance minister Trevor Manuel;
Under this unit, the report says, irregular and unlawful operations were carried out and “intelligence equipment” for the purposes of gathering intelligence, was irregularly procured;
Pillay and Andries Janse van Rensburg, another former SARS official, irregularly procured or authorised the services of Helgard Lombard and Johan de Waal to intercept communication in the offices of the Directorate of Special Operations (DSO) and the National Prosecuting Authority without proper approval;
Pillay was appointed to the position of SARS commissioner without the necessary qualifications.
In a statement, Hotz criticised these findings, saying they “seem to demonstrate that either no, or at best very little investigations, were conducted”.
He further indicated that Pillay would study the report Mkhwebane released on Friday, thereafter, he would institute legal proceedings.
“Once Mr Pillay and his legal representatives have had the opportunity of studying the Public Protector’s report, Mr Pillay will institute the appropriate legal proceedings for the protection and enforcement of his rights.”
Pillay requested that his initial affidavit, which was submitted to the Public Protector in June, be released. He said the affidavit had seemingly been disregarded by Mkhwebane in her investigation.
Hotz said in the 139-page affidavit, in which Pillay lambasted the allegations against him, that:
The investigation feeds into what he calls “the rogue unit narrative”, which “has re-emerged as a part of the post-state capture pushback by those whose interests are endangered by the exposure of systematic corruption and the restoration of clean governance in this country”;
The Public Protector lacked jurisdiction over the complaints as there are no “special circumstances” that would allow her to investigate;
He further slammed the Public Protector whom, he said, “appears to have adopted a position that will brook no disagreement with her, which assumes that any challenge to her utterances, whether on social media, in public addresses or in her reports, amounts to interference with her work”;
The Public Protector failed to consider certain facts and evidence, arriving at a “narrow and blinkered reading of legislation” while ignoring the law. He added that in limiting her inquiry, it rendered her preliminary findings, “irrational, erroneous and invalid”;
He said the Public Protector failed to be impartial and approached the investigation with bias.
Regarding the allegations levelled against him in Mkhwebane’s preliminary findings, Pillay backed up his claims.
He said: “Neither covert and discreet investigation, nor the practice of collecting intelligence, nor the practice of collecting actual or potential evidence, finding information that would guide investigations, investigating, identifying witnesses and whistle-blowers … can remotely be considered as improper, unlawful, illegal or questionable in any manner or form.”
He added the only limitation in law in this regard related specifically to conducting “covert intelligence” specifically in relation to “national security” matters, which were both terms defined in law.
While Mkhwebane said Pillay had not possessed the necessary qualification to be appointed as SARS commissioner, he said his qualifications for the appointment were taken into account, and it was found that he had been equipped to fill the position.
He said he suspected that, in this regard, Mkhwebane was referring to his lack of a degree, to which he replied that he had gained “the skills, equivalent experience and leadership experience that I have accumulated over a lifetime”.
Regarding the irregular procurement of “intelligence equipment”, Pillay denied that the unit, at any point in time, “used, purchased or otherwise obtained” such equipment.
Pillay added in 2015, “the State Security Agency and [former chief officer for business and individual tax, Jonas] Makwakwa took control and possession of the equipment that belonged to ACAS [anti-corruption and security unit]. It was stated that it was an “open secret at SARS and everybody were [sic] laughing their heads off because it was ACAS storage room the was searched for [National Research Group] equipment”.
On the establishment of the intelligence unit, Pillay said: “Despite intense, often underhanded criminal investigations conducted by the Hawks and the National Prosecuting Authority, since May 16, 2015 … no person has been charged with the establishment of the unit.
“That is for a simple enough reason – the establishment of the unit was perfectly lawful, despite the NPA and Hawks having adopted the term ‘rogue unit’, as if it was a fact,” he continued.
It is clear from the affidavit that extensive investigations have been done outside the Public Protector’s office into these allegations that Pillay has had to time and time again refute.
In the statement, Hotz repeated what had been said in the affidavit, that “some of the findings demonstrate: (i) a complete lack of an understanding of SARS as an institution; (ii) some of the findings are patently false; and (iii) it is apparent that misinformation has been provided to the Public Protector”.