Why did I ask the Public Protector to investigate Minister Gordhan? (Part 1 of 2)

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Over the last couple of weeks, I have endured untold pain and suffering following allegations that I am involved in a fightback campaign against Min. Gordhan.
When the allegations were made, I immediately wrote to Deputy Chief Justice Zondo in his capacity as chair of the State of Capture Commission, requesting to appear under oath, attached to a lie-detector/polygraph, to dispel these allegations of collusion. I also registered my displeasure with the office of the PP.
A number of things have happened in the past 4 weeks that convince me that I will not be given a fair hearing nor do I believe I will be granted a fair opportunity to clear my name. It was my intention to allow the PP and Judge Zondo sufficient space to deal with the matter by remaining silent. But I am human. In the course of time, I have endured untold pain, cold gazes, with colleagues, comrades and friends, clearly distressed to being seen in my company. I owe it to some of them, for my peace, to tell the truth, and put my version despite my skepticism that I can change all minds.

Justice Zondo for his part had stated publicly that he would investigate the leakages and look into how journalists such as Ranjeni Munusamy came into contact with Mr Gordhan’s statement to publish my name. He has made the decision not to charge the journalist criminally. I think this was unjust and unfair. I am a victim of their actions and I feel I should have been consulted or at least given the opportunity to put my version.
I have waited patiently, sat resolutely and quietly, as I heard the challenge that those with allegations must come forward. Well, for the part, I did. I not only offered to testify under oath, but I also offered to do it attached to a polygraph/lie detector test. I think and speak for myself. I may be wrong and make concessions of error and of poor judgement, but what is without a doubt is that I will pass any test or cross-examination with flying colours.

From the beginning of the complaint, I have made it clear to the PP that I may be wrong and I gave due regard to public interest. I do not need to remind South Africans that Ranjeni Munusamy readily hides behind the protective veneer Journalistic ethics but conducts herself in a manner akin to the infamous STRATCOM. I was not interviewed, asked questions nor was I given a chance to put my side of the story. This was deliberate, I have a reputation for moral rectitude and integrity- I am not a man of situational ethics. She was well aware of the fact that I would easily dismiss the nonsense, so she did not need my side of the story. Her mind was paid and made

Just as she was involved in alleging that Bulelani Ngcquka was an apartheid spy, her allegations that I worked for President Zuma are her classical brand of smearing campaigns, she defended Zuma in times of trouble and has her Vula comrades well supported in the press. I dare Ms Munusamy and company to the ends of hell and back to produce the name of their sources that I worked for President Zuma. No such source exists, I have never worked for Zuma. It was a lie. It was concerted to create a narrative that my current employer is somehow involved. It was intended to get me fired. I am being punished for thinking and digging too much. It is classic apartheid tactics. Unfortunately, for her I am not a coward nor do I have a scandal they can use against me.
I am just a child brought up with a little bit of privilege, raised never to take for granted my privileges and taught to live within my means. Like everybody else, I have debt but stick to my corner and avoid things that would bring my employment and family name into disrepute. Despite this, I have decided not to approach the Press Council. Ms Munusamy and company did not commit a journalistic error. Theirs was criminal intent. They were vindictive from the very start. They never did anything to correct the errors in their reports despite my statement clarifying the matter. I am awaiting advice on whether Judge Zondo’s ruling, drawn to its legal conclusion, means I cannot institute criminal charges as a victim. I will also look into asking the Inspector-general of intelligence to investigate. It was also my understanding that the Zondo Commission’s legal team is interested in nothing but the truth.
I expected that on receiving my letter they would put questions to Min. Gordhan as to why he found it prudent to drag me into the matter— just a month or so after he appeared at the Nugent Commission, with terms of reference directly investigating this very matter, and made no mention of the fact that the PP was currently investigating the matter. I believed it was important for the Nugent Commission and the PP to conjoin their investigation to avoid two institutions of state replicating the same investigation. For my part, I had every intention of submitting what I gave to the PP to Judge Nugent. I wrote to the PP’s office suggesting this but I was informed that the PP had a cogent reason for not transferring the matter.

In Part 2 I will give a factual account of my interaction with the PP and what led to me taking a back seat and allowing her to continue with her investigation. The PP had already dismissed one part of my complaint and was focusing on a specific element of maladministration, there was no investigation into Min. Gordhan in the context that he conjures up. Luckily for me, I have impeccable records. I have for the past 3-years been writing a book that I against my desire, decided never to publish. Be that as it may, the manuscript provides the most definitive account of my state of mind at the time I lodged the complaint.

I also paint and draw. I sketch satirical cartoons and express my views fully on FB. I drew two cartoons and a painting I sent to former PP Madonsela in that period. These are a demonstration that my interaction with that office has nothing to do with the personality of the incumbent. I have never met her nor have I had any interactions with the PP directly. I interacted with her office via a brilliant investigator and consummate professional who grilled me silly and asked probing questions. He never, ever, not once, crossed the line. South Africa should be proud to have that young man fighting corruption.

The dates on my sketches, the paintings and my journals will count easily in my favour to show that my complaint has nothing to do with state capture. I had never imagined that those private pursuits would count in my favour in so far as dismissing the lie that my complaint has anything to do with State Capture.

It is a downright lie that I ever worked for President Zuma when I was actually writing for then Deputy President Ramaphosa. In fact, a line in my letter to the PP refers to “a state at war with itself”, that was a Ramaphosa phrase, not a Zuma one.
Those journals, sketches and cartoons, the draft of my book with attorneys and publishers, tell a story of my state of mind when I made the complaint. They are compelling evidence that State Capture was actually the final straw of a view held years ago about the conduct of the accused persons.
And so, in Part 1, I republish a post written last year and posted on Facebook. Save for few edits, I am republishing it as was. I will in part 2/2 fill-out the rest of the gaps and give an update on issues I have reviewed.
Given what we know today, after various commissions and investigations, I am publishing it because it gives the best view of what I was thinking when I asked the PP to investigate, the rest I will clarify and update in part 2/2.

In my past life, I had the privilege of serving as one of Kgalema Motlanthe’s speechwriters. During his tenure, a couple of scandals broke, most of which fell flat when he asked the Public Protector to investigate. I asked him why he was instituting these investigations into himself. The lesson will never be forgotten— the Executive Ethics Act.

What Motlanthe explained is that the Act was drafted not only for Parliamentarians to raise ethical breaches with the Public Protector but it also placed the duty on members of the Executive, as members of Parliament in their own right, to cause the PP to investigate any suggestion of wrong-doing.
The implication of Motlanthe’s lesson is that public representatives are never innocent until proven guilty, they also bear some burden to restore and maintain public confidence.
And so, when the story of Minister Gordhan being involved in the activities of the Rogue Unit and awarding his comrade of over 30-years a Brian-Molefe-style pension broke, I thought he should not ‘mantash’ but rather should pull what I have dubbed a ‘kgalema’.
Thuli Madonsela was still the Public Protector then; she had investigated the Rogue Unit issue and would have dealt fairly on the Pension matter. But Min. Gordhan was the author of his own misfortune. Instead of dissociating himself with the actions of Mr Pillay and Magashula, he joined himself to their hip by claiming they were all innocent.

And yes, he probably is but Mr Pillay and Mr Magashula still have much to answer for. And, despite his innocence, Min. Gordhan seems to turn a blind eye to mounting evidence against them; thus, creating the impression he was also in on it.

Some background is important in this regard.
Sometime in 2013, Oupa Magshula’s cell phone was intercepted. A transcript was publicised in which he purportedly offered a young CA a job at SARS. An inquiry was instituted. The inquiry could find no evidence of wrongdoing but Mr Magashula was less frank with the commission. He was forced to resign for breach of trust. He was replaced by Mr Pillay.
Unexpectedly, a friend of mine, employed at SARS at the time, accused Minister Gordhan of purging Mr Magashula. He complained that the matter was racially motivated. According to him, there was nothing untoward about Mr Magashula offering the lady the Job. It was for him a classic case of entrapment. SARS at the time had a shortage of CA’s and ran a programme, located in Magushula’s office, to recruit young black, especially female CA’s. Thus, it was his conclusion that it did not take rocket science that on hearing of an unemployed female CA, Mr Magashula would say send me your CV. Headhunting according to public service regulations is not prohibited under such circumstances.

He then drew the conclusion that Mr Magashula was being racially targeted by a racist SARS and Treasury. He made this leap of reason by pointing out that Mr Magashula was forced to resign for not telling the commission the whole truth. He was then replaced by Pillay, Mr Pillay had submitted, in the same enquiry, an affidavit supporting of Mr Magashula’s economical version. Yet he was not held accountable and was rather promoted to replace Magashula.
Years later the story broke that there was a Rogue unit in SARS that intercepted people’s phone conversations, including bugging NPA offices. Magashula in a 09-10-2016 City Press article hints at his belief to date that he was treated unfairly.

During the investigation into the rogue unit, something else surfaced. It turned out that Mr Pillay was a pensioner but was on the payroll of SARS with 2 contracts amounting to a cumulative 10-year post-pension contract.
When questions were asked as to how it is possible for a person to draw a pension and then receive a 10-year contract, it emerged further that in addition to this SARS deposited R 1.2 million into Mr Pillay’s pension account.
Based on the findings of the commission Tom Moyane laid charges of fraud and corruption against Messrs Pillay, Gordhan and Magashula on the following basis:

1. On or about 25 August 2009, Mr Pillay drafted a memo addressed to the Minister and Mr Magashula, requesting early retirement solely on the basis that he needed the money to send his children to school. In the memorandum, he states “clearly I am doing this on account of a matter that has nothing to do with my work at SARS.” But he requests that his contract of employment is extended and that SARS pays on his behalf a penalty imposed by the GEPF for early retirement. None of these conditions are allowed in terms of the law, GEPF rules or the Public Service Act.
2. Having recognized that the conditions for which Mr Pillay would qualify for early retirement and rehiring could not be met, on 09 October 2009, sends his revised memo. He states in this instance that: “I am willing to serve SARS in a different capacity where the demands of such a job will positively support the reasons why I am in the first instance taking early retirement.”
3. It is now a matter of history that not only was Mr Pillay’s penalty paid he was reappointed in the same position for an effective period of 5 years and another 5 years in a higher capacity. I suppose given his ill-health this would have tritely set him both feet in the grave.
4. Mr Pillay later severed his employment with SARS and has laid claim to a “golden handshake” on the basis of prejudice and loss of future earnings. Again, it is trite to state that a Pensioner with full annuity and benefits cannot have a legitimate expectation for future employment against the same employer. What possible loss he could have suffered for “future earning” are already accounted for.
Now, this is where Min. Gordhan misses the point. As a Minister, he could not have known that Mr Pillay went around shopping for reasons to get the pension come hell or high water. At this point, the Minister says: “No there was nothing wrong with approving the memo, Pillay came to me and said he needs money for his children’s education. Magashula said it was allowed and I thought Pillay deserves the rewards given his service.”

Until this point view Min. Gordhan smells of roses, however, he is then charged for fraud. Freedom Under Law (FUL) then challenges this. In their submission to the NDPP Shaun Abrahams, they attach the memos that Min. Gordhan signed together with a legal opinion from a Mr Symington. On the basis of this legal opinion, Shaun Abrahams drops the charges. When I read the Symington affidavit I was staggered, what was called a legal opinion is not. It was simply not worth the paper it is written on; nor was it by any stretch of the imagination a legal opinion. No Minister exercising his responsibility should have acted on it.

It simply says that there is nothing “technically” preventing Mr Pillay from applying to the minister. What he means by “Technically?” is beyond me. People can apply for all sorts of things; it does not mean they must get it. He certainly does not advise the minister to approve anything. He simply says Mr Pillay is entitled to apply and the minister must consider the request and provide reasons if he declines. Abrahams said nothing on the criteria and what core elements the Minister should consider.

I recall saying to a friend at the time that if this opinion was written by a black man, they would have accused him of incompetence. But in hindsight, I think I was unfair to Mr Symington. When Mr Gordhan spoke of him, he said he is a dedicated lawyer who had given more than 20years to SARS when he could have left to make money as a hot-shot lawyer. Unfortunately, Gordhan’s illusion of Mr Symington’s grandeur and legal master were misplaced. Mr Symington started working at SARS with a BCom in Finance. During his employ, he worked in the enforcement division. He then completed an LLB with Unisa specialising in tax law. He was never in legal practice. That hardly qualifies him to give legal advice on this matter.
Further, Mr Symington was a Deputy Director when he penned this so-called legal advice. By all means, it is strange for Mr Pillay to approach such a low ranking official to give the Minister advice on an issue he has no experience in. So, I really think these goons should leave Mr Symington alone, he was just a pawn in the service of demented souls.

Now put yourselves in the shoes of the investigator who sits with all of this and asks the Minister questions. The Minister says it was all above board “I signed a memo saying he wants to take his children to school overseas.” He opens the memo and what the Minister signed says due to ill-health, what must he do?
But it gets worse when Magashula is questioned he says Min. Gordhan should take the blame for the “fruitless and wasteful expenditure”. “Pravin, who was finance minister at the time, told me that Pillay wanted to go and join his family in Holland and that SARS can’t afford to lose him. Pravin suggested that I approve his early retirement and then offer Pillay a three-year contract which he, as [the] minister I was reporting to, was going to approve. It was Pravin who approved everything.” I thought, but the memo said ill-health! Now enter the dropping of charges by this Shaun fellow.

When dropping the charges, he read us a long list of evidence in their possession the sum of which is:

1. Under the memo signed by the Minister, Mr Pillay was to be
re-employed in a lower position for a period not exceeding 3 years. Mr
Pillay was not only re-employed in his original position, but he was also
promoted and his contract extended for an effective 9 years. Therefore
the question is doing he receive his retirement annuity and additional
full salary for the same post? If he was not granted early retirement,
the state would only have to pay a single salary.

2. Public Service Act/GEPF rules only allow the Minister to approve
payment of the penalty only when it is the Employer, for operational
reasons, that initiates early retirement. Mr Pillay applied for
retirement, to access money he needed to send his children to school.
This is not an obligation that should be carried by the state. This
was not an Employer-initiated package, the Minister had no business
approving the package in the first place. So, the money was paid to Mr
Pillay incorrectly, be it by design or administrative error.

3. In 08/09 October 2009, an HR Specialist sent an e-mail to, Mr
Magashula, advising that the Minister should NOT approve the request,
for, inter-alia:

3.1. A bad precedent would be set. The Minister had in the past rejected
such requests. The 3000 odd packages approved were for employee
initiated settlement were ONLY for restructuring and/or
transformation. It was not for people to send their children to
school.

3.2. If the Minister approved, it would amount to SARS unduly
contributing to the private education of Mr Pillay’s children.

3.3. If the Minister approved the re-employment of Mr Pillay, it would
imply that the Minister approved Mr Pillay’s retirement only to help him get extra money for his children’s private education. In other words, this was not a retirement at all, it was simply a vehicle to assist a comrade and friend of over 30 years, to get access to state funds under false pretence.

The above (3) e-mail was supplemented by another from an HR
Supervisor, who advised that the envisaged retirement should NOT be
approved because it would not advance the business interests of SARS.

4 During the HAWKS investigation, the current HR Executive submitted
an affidavit indicating that it is his professional view that the
retirement should NOT have been approved. (It may be trite to state
that simply because criminal charges are dropped it does not imply that
the payment was proper and according to the PFMA.)

5. Despite Mr Magashula’s submission that over 3000 such early
retirement plans have been approved, it is not so. The 3000 packages were for transformation and restructuring not for Mr Pillay’s reasons, in fact, the minister rejected at least two requests of Mr Pillay’s nature.

6. The Minister’s approval was, in any event, incongruent, irrational
and without due diligence:

6.1. The Deputy Minister did not endorse the Memo though space was provided for him to sign.

6.2. He did not apply his mind to the minimum provisions, outlined in clause 5.2 of the Determination on the introduction of an employee-initiated the severance package, inter alia:
Under 5.2 (c) The impact of employee’s exits from the department on its service delivery capabilities. (Mr Pillay was a core staff member with experience, for this reason, the Minister felt compelled to rehire him at exorbitant additional cost. He should have not allowed him to leave in the first place.)
ii. Under 5.2 (c) The manner in which the employee exits (must) support transformation and restructuring. (Mr Pillay is black. There was not restructuring taking place.)
iii. Under 5.2 (e) The ability of the department to finance the cost related to the payment of the severance package. (SARS was not undergoing restructuring, the sums of money where not budgeted for and would have to come from other programmes)
iv. Under 5.2 (f) The impact of the granting of the severance package on the morale of other employees (Two HR representatives submitted written advice that the Minister granting Mr Pillay retirement would set a bad precedent and would affect morale negatively as it would be
seen as granting favours to Mr Pillay.)

7. The Minister was only authorised to re-employ Mr Pillay for a period of 3-years, in a lower capacity, with the possible renewal for a further 3-years if a suitable candidate could not be found. Mr Pillay’s contract was first awarded for 5 years, not the 3-years authorised. The Contract was extended by a further 4 years of the eve of elections, into the term of a new administration, 9 months before the old contract was to expire. There was no recruitment drive or any effort to find another suitable candidate.

8. When the contract for a further 4 years was concluded, an HR representative warned that it was unlawful to renew the contract further, especially when Mr Pillay still had 9 months remaining on his contract and it would be incorrect to bind an incoming Minister to an additional contract from a previous term. The contract extension was done without supporting documentation. But beyond Mr Pillay’s Retirement, there are other pension matters involving him.

In another Sunday Times article of 2015-10-04, the following is reported:
“The South African Revenue Service has accused Ivan Pillay, its deputy commissioner, of paying a bribe and demanded he pay back more than R110-million.
The demand is the latest salvo in the conflict between Pillay and his boss, Tom Moyane, over the establishment of a rogue unit in the revenue service.
In a letter of demand sent to Pillay on January 26, SARS accuses him of ‘fruitless and wasteful expenditure’ in establishing and operating the unit.”
Pillay is accused of “paying a bribe” after he “facilitated an approval for the payment” of R3-million to get the first commander of the unit, a former intelligence operative known as Skollie, to go quietly.

The payment was made under the “pretext of a settlement as his retirement package in a bid to silence the employee from divulging the illegal and covert activities of the unit”.

Pillay also stands accused of having “facilitated an approval that SARS pays R1.2-million into his own “pension fund account under the pretext that Pillay was taking an early retirement while he remained in the employment of SARS until December 31 2018”.
This amounted to “fraud and/or corruption”. Senior SARS sources said that Pillay, in a letter sent to the revenue agency on Thursday, offered to resign on condition he was paid for the four years remaining on his contract.

They said Pillay demanded his ally, suspended SARS strategy chief Pete Richer, first be paid for the two-and-a-half years left on his contract and Yoliswa Pikkie, the suspended senior manager in Pillay’s office, be given a settlement offer.

The sources said SARS’ anti-corruption head, Clifford Collins, requested early retirement and left five days after it was granted. The sources said Pillay last month approached Moyane through lawyer Michael Hulley and offered to quit if charges against him were dropped and he was allowed to hand over the reins within six months. SARS spokesman Luther Lebelo said Pillay’s offer had been rejected outright.
“We can confirm that Pillay’s letter was sent to us, but we rejected the proposal as we believe the allegations against him are too serious and he must be given an opportunity to respond,” said Lebelo.” Now let us put ourselves in the shoes of the investigators in this matter. Did they not have reasonable suspicion?
It is inconvenient to remember today that the charges against Min. Gordhan were instituted when he was COGTA minister, long before he stood up to the Guptas before Jonas was offered the Job, before he was finance minister the second time around.

I for one was disappointed when President Zuma appointed Min. Gordhan after 9/12. I asked myself how the ANC could allow The President to appoint a man who was facing such grave corruption charges as the Minister of Finance and have oversight over an institution that was still investigating him. Why did he not decline, where were his ethics then?
I am actually of the view that Mr Gordhan is innocent and was misled by Mr Magashula and Pillay. And in being defensive for things he ought to know nothing about, he invited suspicion.

Another thing we have forgotten is that the real conspiracy around why this investigation took place while Min. Gordhan was at COGTA is that the unit allegedly intercepted Mr Zuma calls. That is the most proximate political issue. State Capture and the Guptas is a Johnny come lately issue. And so, Comrades and Friends, this is how we got here. The moral of the story? a Politician is never innocent until proven guilty. Min. Gordhan could have avoided all this noise by asking the Public Protector to investigate. I think he is innocent but he only has himself to blame. He made the bed, he must lie in it.
He must now prove his innocence the long route.
P.S: If you want the supporting documents, they are attached to the Freedom under law affidavit, in their application to drop charges.

Lebogang Hoveka
-A Speechwriting Specialist in the Public Sector writes in his personal capacity-