Submission from Adrian Lackay, former South African Revenue Service spokesperson, to Yunus Carrim, Chairperson of the Standing Committee on Intelligence and Cornelia September, Chairperson of the Joint Standing Committee on Intelligence, March 25 2015
24 March 2015
The Honourable Mr Yunus Carrim
Chairperson of: the Standing Committee on Finance
The Honourable Ms Cornelia September
Chairperson of: the Joint Standing Committee on Intelligence
Per e-mail:
Dear Madam/Sir
RE: Proceedings in relation to events at the SOUTH AFRICAN REVENUE SERVICE (SARS)
Introduction
1. As you may be aware I was employed by SARS for a period of 11 years, until my resignation on 19 February 2015 with last working day being 19 March 2015. I served SARS with an unblemished record and received recognition for outstanding performance from SARS every year. I am addressing this letter within the context of my employment at SARS as the official media liaison and spokesperson, and for the specific-period since September 2014, which coincides with the appointment of Mr Tom Moyane ('the Commissioner') :
1.1. During the latter part of 2014 I was caused by the Commissioner to issue statements to the media and it became apparent to me at a later stage that such public statements contained false and incorrect information;
1.2. My role as spokesperson, in particular with aspects contained herein, was diluted and eventually withdrawn in part by SARS and my duties were referred to the SARS Executive: Mr. Luther Lebelo and other colleagues ;
1.3. Key facts which I was in possession of or came to be aware of during the course of my time at SARS that relate to the matters at hand were being ignored deliberately , adapted to advance a particular narrative and which were used as basis to effectively muzzle, frustrate, victimize and suspend key officials in SARS;
1.4. As the spokesperson for SARS I was effectively muzzled by SARS and the Commissioner and thereby unable to ensure that the public was aware of critical factors regarding the ongoings at SARS;
1.5. I resigned from SARS under duress and because it became untenable for me to associate myself with the ongoing matters at SARS, I have commenced instituting labour proceedings against SARS on the basis that Iwas constructively dismissed .
2. I have reason to believe that the Commissioner of SARS, Mr Tom Moyane ('the Commissioner'), will be addressing the Standing Committee on Finance ("SCOF") and the Joint Standing Committee on Intelligence ("JSCI") in the coming days on the events that have recently occurred in that institution and related investigations. It is my view that it is in the interest of the SCOF and JSCI, in the interest of justice and ultimately in the public interest, that -
2.1. a true version of such events are also placed before the SCOF and JSCI and its members, albeit in writing and not in person; and
2.2. the SCOF and JCSI should be apprised of what Ibelieve to be at the heart of the ongoing matters at SARS.
3. I would be failing in my duty as a citizen if I did not ensure that the SCOF and the JSCI and its members are completely apprised of the facts of the matter, and in that regard I am willing to make whatever evidence I have in my possession available to the SCOF and JSCI, at request.
4. This version of events I place before the SCOF and JSCI, without prejudice to my rights, for the sole purpose of assisting the SCOF and the JSCI to obtain a balanced and comprehensive understanding of the facts at my disposal.
5. Since September 2014, certain SARS officials and certain role-players in the media have been advancing a particular narrative which I submit is false and contrived:
5.1. ''The existence of a so-called "rogue spy unit" in SARS ."
5.1.1. I submit that facts to my knowledge suggest the units, (there were three permutations of the units over time) were formal SARS units and set up, managed and functioned in a manner no different from any other unit. The only distinction between these units and others investigative units in SARS was that members were given leeway to work from home and their activities were kept discreet in order to ensure operational security, and the safety of the respective officials and families over time;
5.2. "That SARS had been denying the existence of this unit."
5.2.1. I submit that in 2010 I was principally involved in briefing various media houses on the existence of the unit in its form as it was then, that its existence was never denied and that the media was completely briefed on its purpose;
5.3. "That these units over time were supposedly involved in spying on Mr. Jacob Zuma prior to him becoming President of South Africa, infiltrated politicians as bodyguards, had sophisticated equipment used to intercept communications and so forth."
5.3.1. I deal with these later herein. To my knowledge all these allegations have their origins in a little truth and much fiction.
6. It is my belief that any past attempt by any person within SARS to have countered this narrative, were muzzled, bullied, threatened, suspended, and their tenure at SARS made unbearable. In some cases persons left SARS's employ . I believe that even now persons are being and will continue to be victimized and bullied for wanting to out the truth , sometimes at great cost to SARS by way of legal threats. Ultimately the taxpayer has to foot the bill for this.
7. It is further my belief that the "narrative" advanced by SARS and others in the media deliberately conflates certain issues, confuses or misrepresent material facts and embroiders significantly on a unit which was at best 27 officials strong at its height, and ended as 6 officials, and effectively capitalizes on the ignorance or lack of insight and understanding of the complex environment of how SARS used to function. The operations of these units were miniscule in comparison to the balance of operations in SARS in terms of number and scope. The amount of public attention and gravitas allocated to the operations of the unit over time, is inordinate.
7.1. By way of example, SARS now advances that certain "spy equipment" belonged to or were "available" to the unit whereas this is not the case. The truth of the matter, to my knowledge, is that such equipment which is commercially available, were acquired by a totally different division within SARS, tasked to investigate internal corruption and had nothing to do with the units in question. They were at all material times in separate divisions, had separate cost centres and management.
8. What I relate here is based on my personal knowledge of facts I came to be aware of over time.
Actions by the Commissioner since September 2014
9. In September 2014, soon after his arrival at SARS, the Commissioner disbanded the entire EXCO of SARS. Primarily his decision was based on what he stated formally to be news articles in the Sunday Times and leaks to the media;
10. Suspended Deputy-Commissioner Ivan Pillay, Group Executive Peter Richer, Group Executive Johann van Loggerenberg on effectively the "narrative" referred to and stated so publicly in the Labour Court under oath, in internal communications to SARS staff and in at least one statement to the media. The findings of the "Sikhakhane Panel" were also advanced as reasons for the suspensions . Despite the Labour Court finding that the Panel's report made no adverse finding against any third party, the Commissioner and SARS have continued to advance this narrative and acted against numerous SARS officials including the suspended Deputy Commissioner, at significant financial cost to SARS. To date SARS has already had to concede and pay legal fees and other costs in three legal proceedings against officials it had suspended.
11. Advanced publicly on Radio 702 in January 2015 that the so-called "rogue unit" still existed at a time when the SARS Commissioner had already closed down the High-risk Investigations Unit comprising of a mere 6 officials who previously worked within the National Research Group and the Special Operations Unit. These investigative units were the subjects of various investigations over time;
Sequence of events
12. Certain key officials in SARS appear to have reached a stage, since September 2014, where they took the personal decision to resign from SARS, including Messrs. Barry Hore, Jerome Frey, Jacques Meyer, Johann van Loggerenberg, and Clifford Collings and of late there are more senior personnel that have tendered their resignations.
13. I wish to set out a limited narration to the sequence of events as I see it based on what I know:
13.1. The primary protagonist who triggered off this saga in May 2014 was Ms Beinda Walter. In my view her attack on Mr. Johann van Loggerenberg was based on a number of reasons but appears to have been based on her emotional disappointment of a failed relationship at the time, the failure of her attempt to blackmail him and a fear of the consequences of her financial affairs, and the existence of the data and evidence of her wrongdoing in his possession.
13.2. In essence, her initial allegations were rather basic and undeveloped, and was aimed at insulting his person and his fitness of office. Her narrative developed in time as she came to overlap with other persons and other interests, and she adapted her approach accordingly, to eventually focus around a so-called "rogue unit", a charity van Loggerenberg is a director of and now lately his qualifications.
13.3. She also started engaging the media - most notably a particular journalist with whom she shares a specific history, Mr Malcolm Rees. To my knowledge the data extracted from her cellphones demonstrates that Ms Walter had, at a time before he even knew of her existence, in conjunction with her erstwhile client "Carnilinx", sought to advance stories to Malcolm Rees, and which suggested some kind of impropriety in respect of the business associations of a Mr Edward Zuma and a Pietermaritzburg-based tobacco manufacturer. This email sets out quite clearly what was intended by Ms Walter at the time.1
13.4. I believe that what Ms Walter was completely unaware of, but very quickly adapted and utilized to her advantage, was the acrimony that had already existed between Mr. Johann van Loggerenberg in his official capacity and certain officials in other state agencies (more especially the Anti-Illicit Tobacco Task Team referred to) who in his view had busied themselves wittingly or unwittingly with advancing commercial interests of businesses, participating in illegal tracking, allowing smuggling to occur under guise of investigations, duping state agencies into believing certain "intelligence reports", to name a few. Mr Johann Van Loggerenberg was outspoken about his views on this towards me ad other SARS officials.
13.5. I believe that it certainly "helped" that they were known to her from a period before she and Mr Johann van Loggerenberg had met. For example, Hawks Brigadier Casper Jonker who headed the Anti-Illicit Tobacco Task Team. It was Brigadier Jonker who took Ms Walter's affidavit for the purposes of her "complaint" to the Hawks and used it as reason why she did not want to testify under oath to the SARS "Khanyane Panel."
13.6. A further example would be former Colonel Hennie Niemman, who was part of the same Tobacco Task Team, and a member of the police Crime Intelligence Division, and has recently left the police. He had already started to engage private persons as early as April 2014, prior to Ms Walter's complaint to SARS to seek "dirt" on Mr. Johann van Loggerenberg. This matter was reported by Mr. Johann van Loggerenberg via SARS to General Dramat of the Hawks at the time.
13.7. It is this same Colonel Niemman who collaborated with Ms Walter and Mr Peega in a television broadcast on Carte Blanche on 22 February 2015 about the alleged "SARS rogue unit" and made untrue and slanderous allegations against Mr. Johann van Loggerenberg and others.
13.8. I believe that these persons functioned in tandem with Ms Walter and the second set of protagonists with the sole purpose of ridding SARS of persons they were opposed to. I believe that their efforts had been unsuccessful for some years, and finally came to fruition when the circumstances presented themselves for the proverbial "perfect storm ."
13.9. I believe that it was virtually within a few days after the initial complaint that a fourth set of protagonists capitalized on the situation . I believe that these persons hail from within the institution and have had axes to grind with mainly Mr. Ivan Pillay, Mr. Pete Richer and Mr. Johann van Loggerenberg and others affected for a variety of reasons. I believe that it very quickly became a case of "my enemy's enemy is my friend" and in a rather short space of time, people who would never have associated themselves with each other from any perspective, began to advance each other's agendas.
13.10. I believe that a fifth set of protagonists also capitalized on the "opportunity" created; consisting of persons who were formerly employed at the institution, but left under a cloud or were dismissed and/or are facing criminal charges. I believe that their efforts had been going on for some time and only served to bolster what the other groups were up to. I believe that former SARS official and NRG-member, Mr Michael Peega falls within this category . He was dismissed during 2009 for his involvement in rhino-poaching in a joint action between the South African Police Service ("SAPS") and South African National Parks on Christmas Day whilst on leave.
13.10.1. He was the original author of a so-called "intelligence dossier" in 201O which was advanced by politician, Mr Julius Malema, and was given significant media coverage. SARS had submitted a line-by-line refutation of this "dossier'' at the time to the SSA, SAPS; the President of South Africa and various media outlets over that period;2
13.11. I believe that the by-product of this sequence of affairs is that there are now multiple agendas, being advanced by multiple groupings in different ways, sometimes in tandem or concert, sometimes not, sometimes individually so and sometimes in collusion. The lack of reaching a conclusion on the true facts has harmed and continues to harm SARS as an institution, its public credibility and ultimately the fiscal prospects of the country.
13.12. Multiple "camps" appear to have formed, some apparently supporting the suspended SARS officials, some supporting new management at SARS, some advancing individualistic agendas, some advancing agendas against new management at SARS, political or ideological motives are beginning to feature and new "facts" which are partly based on truth but again mixed with fiction are being leaked to various media outlets.
13.13. These media leaks have now developed to suggest some or other nefarious political motives by various political persona in the political landscape.
13.14. Regular and known "information peddlers" have now also jumped on this situation and are beginning to advance their own motives.
The relationship between former SARS-official Johann van Loggerenberg and Ms Belinda Walter
14. Much of the narrative in this matter was triggered by the involvement of a Ms Belinda Walter ('Ms Walter'), who was the chairperson of a body representing small tobacco manufacturers (Fair Trade Independent Tobacco Association - "FITA"), and who has repeatedly confessed that she was at all material times an informant of the State Security Agency ("SSA") and her romantic relationship with former SARS-official and Group Executive of Investigations, Mr. Johann van Loggerenberg. She has also from time to time declared publicly that she had on behalf of the SSA spied on the tobacco manufacturers, for a fee.
15. It has been suggested by the "Sikhakhane Panel", and in various media reports (print and radio) that her relationship with the SSA ended in 2012. This assertion is incorrect since, to my knowledge, her relationship with the SSA only terminated at the end of 2013. In fact, Ms Walter, according to her own account of events, acted on instruction of the SSA or one of its officials as late as 2 September 2013, and utilized a surreptitious recording-device belonging to the SSA for that purpose. Mr. Johann van Loggerenberg made these facts available to SARS and various persons in SARS over time.
16. Mr. Johann van Loggerenberg submitted a detailed affidavit with far greater detail than what will be reflected herein, with supporting and substantiating evidence as annexures, to SARS and the Sikhakhane Panel. From Mr Van Loggerenberg's affidavit, the following is apparent-
17. On 2 September 2013, Ms Walter met Mr. Johann van Loggerenberg in his official capacity for the first time. This was preceded by an unrelated complaint concerning tobacco-matters submitted to Acting Commissioner Mr Ivan Pillay and some e-mail exchanges which ultimately led to Mr. Johann van Loggerenberg suggest ing an informal interaction. Mr. Johann van Loggerenberg met with her on his own as he was entitled to in terms of the Customs & Excise Act which specifically provides that an official may engage individually with any person in matters concerning Customs and Excise.
18. At the time Mr. Johann van Loggerenberg had no knowledge of Ms Walter other than that she was the chairperson of FITA, and the discussion between them was of a general nature intended (at least from his perspective) to seek ways to ensure compliance with the FITA members' statutory tax obligations.
19. Nothing ultimately transpired from this meeting insofar as SARS was concerned. Approximately two months later on 25 October 2013, Ms Walter invited Mr. Johann van Loggerenberg out on a date. They met at a restaurant, after hours that following weekend, and were joined by two of Mr Van Loggerenberg's friends. Ms Walter and Mr Van Loggerenberg commenced what could for all purposes be considered a romantic relationship from that date (i.e. November 2013) onwards.
20. As events began to unfold within the context of a romantic relationship, Ms. Walter subsequently confirmed that in the meeting with MrVan Loggerenberg that on 2 September 2013, she wore a concealed recording device provided to her by her SSA handler, Mr Chris Burger, in the belief that Mr Van Loggerenberg was corrupt3
21. During this relationship, which lasted at best 5 and a half months, various issues arose between them, some of which included his concerns about the impact of their relationship on his professional duties and obligations to SARS. By way of example -
21.1. at the commencement of their relationship in November 2013, Mr. Johann van Loggerenberg enquired about Ms Walter's tax status, and when it became obvious that she was not tax compliant, and in light of the sensitivities associated with her being a paid informant of the SSA, they agreed that she would submit herself to a tax audit in order to regularize her affairs, and to protect her status as an SSA informant. This audit was arranged by Mr. Johann van Loggerenberg to be undertaken by another senior manager and was intended to be finally signed off by Mr Gene Ravele, the Chief Officer at SARS .4
At various times during the relationship Ms Walter sought private advice from Mr. Johann van Loggerenberg in this regard, and she discussed aspects of her income and sought assistance from him from time to time. Ms Walter did not at any stage express any concern or objection to the manner in which the SARS audit was being conducted, and she was in fact quite complimentary about the auditor with whom she interacted at the time.
However, at the demise of their relationship, this suddenly became an issue. At various times, Ms Walter expressed open acknowledgement of her tax issues, and her willingness to settle them and to do so properly regardless of the consequences . Mr. Johann van Loggerenberg was not involved in the audit at all5
21.2. On another occasion early in November 2013, Ms Walter informed Mr. Johann van Loggerenberg that she had disclosed their relationship to one of her tobacco manufacture clients, and that the client had encouraged her relationship with him. Mr. Johann van Loggerenberg was not aware, at that stage that Ms Walter had been acting for a tobacco manufacturer in litigation against SARS. Given that tobacco manufacturers were under close scrutiny by SARS, Mr. Johann van Loggerenberg informed Ms Walter that her representation of the tobacco manufacturer was problematic and that she had to make a choice about her professional relationship with the client or her personal relationship with him. She chose the latter7;
22. On yet another occasion he raised with her his discomfort and the potential conflict between her role as chairperson of FITA on the one hand, and his role as a senior employee of SARS who was involved in addressing compliance issues of such manufacturers on the other hand. At the time, she informed Mr. Johann van Loggerenberg that she anticipated that someone else would be elected as chairperson of that organization , and that her role therein would come to a natural end in November 2013. Contrary to her assertion in this regard, she was re-elected as chairperson of FITA, and upon receipt of such information, he immediately (on the same day) informed her that she would have to make a decision about their relationship. At that point, Ms Walter resigned from the organization8 and from her role as an SSA informant9.
23. Mr. Johann van Loggerenberg ended his personal relationship with Ms Walter on 13 May 2014 10 for a variety of reasons, including the fact that she had not been entirely honest with him about the activities that she had been involved in prior to the commencement of their relationship, and in respect of which he had developed serious reservations. For example -
23.1. In documentation seen by me, Ms Walter informed Mr. Johann van Loggerenberg that whilst she was a paid informant of the SSA, and with the knowledge of her respective SSA "handlers", she was also a paid informant for British American Tobacco UK Pie ("BAT UK"). She informed him on several occasions that this came about as a result of an introduction by her SSA handlers to BAT UK, and that BAT UK and the SSA and Crime Intelligence of the police were aware of this "arrangement". Ms Walter also provided him with:
a) a copy of the correspondence between BAT UK and British American Tobacco SA confirming such payments; b) two recordings of discussions that she had with a BAT UK "handler" privately and in which reference is made to the respective state agencies who were aware of this "relationship"; and c) photos of 2 Travelex cards which were utilized by her and BAT UK to receive payment for services rendered, and which were not in her name. She utilized such cards to withdraw payments made by BAT UK in the United Kingdom at respective ATM's in South Africa from time to time .11;
23.2. on various occasions during his tenure at SARS 12 Mr. Johann van Loggerenberg recorded his concerns about the independence of a so-called multi-agency Tobacco Task Team headed by a Brigadier Casper Jonker of the Hawks, [as he was aware of the close relationship between the Tobacco Task Team and certain private investigative firms funded by large tobacco manufacturers]. who in his view exerted inordinate influence over the Tobacco Task Team. According to him, this was unethical and to the disadvantage of the smaller traders in the industry. The fact that Ms Walter informed him that her SSA handlers (Mr. Ferdi Fryer and later Mr. Chris Burger) were part of this team concerned him greatly. Perhaps more importantly, he was extremely worried about Ms Walter's involvement in these activities in light of the fact that it raised issues about her ethical duties as an attorney of the High Court;
23.3. she was caught accessing messages and e-mails on Mr. Johann van Loggerenberg's cellphone without his permission on at least 3 occasions . When he confronted her about this on the third occasion which occurred on 31 January 2014, she retorted the very next day (1 February 2014), by making unfounded accusations against him - to her former client "Carnilinx", senior counsel and the media - that were not only untrue but also defamatory of him. After making such accusations and realizing the 'folly of her ways', she sent an e-mail to the relevant persons in which she retracted her accusations against Van Loggerenberg, in the following sweeping terms:
"I am writing to you as colleagues to sincerely apologise for, and explain my inexcusable conduct yesterday .
I had hoped that by exposing myself and explaining about the BAT relationship, it would allay Camilinx' fears that I have never and would never pose any threat to them and that my son would never be in danger. ...
What I said about Johann van Loggerenberg, was untrue and devoid of any truth. Johann conducts himself in such a manner as to always be beyond reproach. Mr Cassim mentioned that too and it is so. He simply does not and will not cross the lines that Camilinx so desperately hopes he has. He is not like the industry or its participants, including me. I am deeply ashamed of what I said.
My conduct was reprehensible and inexcusable and I can only offer my apologies and brief explanation as to what had transpired and brought me to your office in the extreme emotional state that I was in.
I am aware that I will need to extend an apology to Johann and I will endeavour to do so without reference to the participants at the meeting or the exact context to ensure that Camilinx is not compromised in any manner. It is grossly unjustified and I can only hope that you will respect the past I cannot disclose."13
23.4. This incident, in particular, demonstrated that Ms Walter was tormented by her various contradictory roles and that it was a very difficult road to tread in the context of her ethical duties as an attorney. These texts and the various e-mails are available for inspection, if necessary, and were seen by me. This same incident apparently triggered "Carnilinx's" application to the High Court to interdict both her and BAT from spying on them. At various times Mr. Johann van Loggerenberg submitted that her motives for contacting Carnilinx, were most likely founded on the following :
23.4.1. A realisation that the regularisation of her financial affairs will lead to dire consequences, including revelations of her having received large sums of cash from "Carnilinx" improperly14;
23.4.2. Her insecurity about the relationship with Mr. Johann van Loggerenberg and her belief that he was unfaithful to her and having improper relationships with other women ;
23.4.3. The information that she received from a FITA member, Mr Johan Beets, on 31 January 2014 that FITA members distrusted her and were suspicious of her. In a whatsapp message to him on 31 January 2014 at 13h27 she informed him that:
"He hates me. He feels betrayed. I just kept denying it. Said its all rubbish and they must bring proof No shit they made on their computers. They said that everything in the SARS letter is only stuff I knew. Beets then have me a bunch of veiled threats that I would never be so stupid and risk mine and [her son's] safety because I know what they would all do to me."
To some extent, Ms Walter confirmed these threats and the emotional effect thereof on her in an opposing affidavit in the "Carnilinx" interdict application that she filed in the High Court and which is publicly available.
24. These and other issues permeated their relationship, and the fact that they had different views and many disagreements about her ethical role in these activities, eventually destroyed the relationship, according to Mr Van Loggerenberg .
25. It appears that in early 2014, Ms Walter approached the Sunday Times and the Mail & Guardian with a view to address what she had expressed as a "serious abuse of power in state agencies". This resulted in a number of media reports concerning the relationship between BAT UK and the SSA in the tobacco industry. Van Loggerenberg demonstrated that as part of the process, Ms Walter attempted (via a private company) to extract data from some of her older cellphones in order to provide proof of herallegations.15 It appears, however, that she was not satisfied with the results of the data extraction, and then asked Mr. Johann van Loggerenberg to assist her in extracting such data. Mr. Johann van Loggerenberg asked a friend, who was a qualified data analyst, to do so, and then simply gave her one of two memory sticks with the relevant information. Mr. Johann van Loggerenberg retained the second memory stick and when he eventually had the opportunity to look at the information, it was clear to him that Ms Walter, BAT SA, BAT UK, a private investigation firm that does work for certain tobacco companies, police crime intelligence informants, and former and current SSA officials were involved in a range of illegal activities which had cost the fiscus hundreds of millions of rands. Mr Van Loggerenberg spoke openly about this at SARS and provided information to this effect to SARS. I am aware that Mr Van Loggerenberg formally requested SARS to either register criminal charges itself or give him permission to do so and he was extremely frustrated with the fact that SARS never responded formally to him. Some examples of what have been described above include but are not limited to:
25.1. Corruption;
25.2. Fraud against SARS, the National Prosecuting Authority, State Security Agency and the Swiss buyers of the erstwhile London Stock Exchange company Lonhro and its South African subsidiary Rollex;
25.3. Money-laundering ;
25.4. Setting up a "front company" with a view to trade in the YES-brand together with current and former SSA officials and informants, to be partly funded by a convicted tax evader and tobacco trader under the guise of what they termed to be "Project Robin". Their intention was to utilize their access to the SSA to fund part of the activities ;
25.5. "Laying a paper trail" to deceive SARS on behalf of "Carnilinx";
25.6. Knowledge of an "illegal spy-ring" in Zimbabwe which was funded by a private company in South Africa, set up by a former SARS official Mr Michael Peega and discussions that occurred between Ms Walter , the private investigations company and a SSA official.
25.7. . A directed effort with the knowledge of certain SSA and Crime Intelligence officials to "ruin the career" of SARS official Marietjie van Wyk who was instrumental in investigating Carnilinx . I am aware that Van Loggerenberg compiled a detailed file on this matter and provided such to SARS.
26. . In various correspondence and affidavits under oath in the Regional Court and the High Court, Ms Walter: a) denies that she had asked Mr. Johann van Loggerenberg to assist in downloading and extracting the data from her cellphones; or b) insists that Mr. Johann van Loggerenberg and/or SARS intercepted her communications for a period of 3 years 16 and c) challenged Mr. Johann van Loggerenberg to prove that she handed the cellphones to him willingly.
27. Mr. Johann van Loggerenberg has photographs which I have seen of the cellphones, an envelope which he claims, has Ms Walter 's handwriting with the details of access codes and passwords to a BBM "cloud" referring to a so-called "chat group" named "Evil ink" of which Walter was a member, together with other persons in the tobacco industry. It is obvious in my opinion, that she would not have written such details if she did not want his assistance with the data extraction process and would not have discussed this with him in text messages. According to Van Loggerenberg, the photos of the cellphones were taken, at the time, by his friend (the qualified data analyst) . The photos display the serial numbers of three cellphones, the batteries, the MTN sim-card and EMEi numbers. In a legal notice to SARS dated 11 August 2014 in terms of section 11(4) of the Tax Administration Act, Ms Walter gave notice of her intention to issue summons against SARS and recorded the following, which she attached to a media statement to the South African Press Association (SAPA):
"... Finally, I place on record that I have at no time given ANY of my devices to Johann van Loggerenberg for forensic evaluation for evidence and require that you provide myself and the Hawks with documentary proof of these bald and false a/legations, such evidence would naturally include photographic material of the devices and my signature making them available, date, etc."
28. . On consideration of what Mr Van Loggerenberg has advanced - i.e. photographs and text messages - Ms Walter's denial is patently false, in my view. In addition to the information referred to in paragraph 18 above, the following text messages between them, by way of example, which indicate that she had voluntarily handed over the cellphones to him:
28.1. On 1 March 2014 at 09h38 Walter enquired from him: "Where are my phones? " He responded at 09h39: "Sealed. Will get them in week." A couple of seconds later Ms Walter responded: "Thx".
28.2. An analysis of various cellphone text messages exchanged between them , which I have seen, confirms that Ms Walter perused the extracted data and freely exchanged messages and discussed what she found therein.
29. Ms Walter has on many occasions suggested that he had interceher cellphones i what I believe to be an attempt to discredit this data. As a fact, I know that she was c this belief when they met and he did not correct her belief that SARS had sue capabilities up to a point in their relationship. I dealt with this in statements to the medi when asked about this. It is of significance that Ms Walter never responded to this.
30. The data from her cellphones was, on her request, physically extracted through program known as 'Cellebrite' , by a private company , and at no cost to Mr. Johann va Loggerenberg. Physical extraction entails a bit-by-bit copy of the entire flash memory I a mobile device and not actual live (or so-called aural) interception as alleged by tv Walter. Experts in the field of data recovery will be able to easily identify the differenc
between physically extracted data as opposed to live (or so-called aural) intercepte data. In the absence of any expert evidence to the contrary, Ms Walter's suggestion th; this data was not physically extracted from her cellphones or that it constitute intercepted data, must be rejected.
31. Following the demise of their relationship, Ms Walter attempted to blackmail him asking him to "pay her money" as a) "source" for SARS!,and when this failed, - .b) caused a complaint to be registered with SARS. It appears that Ms. Walter was of th belief that Mr. Van Loggerenberg was able to obtain access to and pay "informants" c behalf of SARS from text exchanges at the time.
32. During late July 2014 Iwas contacted by The Star, the Sunday Times and the City Pret newspapers with claims that Mr. Van Loggerenberg was going to be "suspended an investigated for corruption." In my interactions with Mr. Van Loggerenberg he told m that he was informed by one journalist that the "leak" originated from a persc associated to the SSA. In preparing responses to these media enquiries, Mr Va Loggerenberg advanced that these leaks were attributed towards persons in th tobacco-industry which SARS's view, had interests in discrediting him.
33. To my knowledge Ms Walter also decided, once again, to engage the media wi1 essentially the same allegations that she had advanced and retracted previously February 2014. A Sunday Times Journalist, Malcolm Rees, prior to publishing the first of a series of articles regarding SARS and the so-called "rogue unit" left an email on the table after meeting Mr. Johann van Loggerenberg on 8 August 2014. This email, which I have seen, indicates that Ms Walter's intention was to create the impression that Mr. Johann van Loggerenberg was corrupt, conspired with "organized crime figures" in the tobacco-industry and was an "apartheid spy".18
34. I point out that at this stage i.e. July/August 2014, the allegations against SARS were aimed solely at Mr. Van Loggerenberg and no mention was made of any supposed "rogue unit" and "illegal interceptions" of communications at all. Such allegations had featured in the media from around 2010 when Mr Peega, a former SARS official had published a so-called "intelligence dossier" and which I have dealt with above. In this dossier allegations were made of a so-called SARS "rogue unit", that the "rogue unit" had "infiltrated Friends of Zuma" and "illegally intercepted communications." SARS to my knowledge dealt with these allegations directly via the media, the SAPS, the SSA and the Presidency at the time. The allegations being advanced by Ms. Walter were solely suggestive that Mr. Johann van Loggerenberg was corrupt and that the romantic relationship was "ill-advised" or "improper" in one or other way . The Sunday Times on 10 August 2014 referred to Mr. Johann van Loggerenberg as "apartheid spy" first and this was penned by journalist Malcolm Rees. To my knowledge Ms Walter had prior to knowing Mr. van Loggerenberg, a particular relationship with Malcolm Rees. I deal with this aspect later herein.
34.1. In September 2014 onwards multiple articles were published by the Sunday Times which began to advance that there was a "rogue unit" that had "infiltrated politicians" and "bugged Zuma" and began to overlap what Mr. Peega had been advancing to the media years before with what Ms. Walter began to advance about SARS. I believe it no coincidence that Ms. Walter and Mr. Peega collaborated in a television broadcast on Carte Blanche on 22 February 2015 about the alleged "SARS rogue unit" and allegations against SARS, Mr. Johann van Loggerenberg and others.
The investigations by SARS
To my knowledge and as consequence of Ms Walter's complaint to SARS, Mr. Johann van Loggerenberg was subjected to three separate investigations by SARS19
The first investigation
35.1. The "Khanyane Panel" investigated the original allegations made by Ms Walter.
35.1.1. At this stage of the chronology, Ms Walter's complaints were not directed towards allegations of a "rogue unit" in SARS, but were essentially focused on Mr. Johann van Loggerenberg, his person and that he had supposedly "infiltrated" her and "intercepted her communications". Her complaint morphed over time as she came to meet with and learn more from others who were advancing agendas of their own. I deal with this aspect later herein. In time the focus of the allegations began to draw in Mr Ivan Pillay and later on Mr Peter Richer and ultimately Messrs Pravin Gordhan and Trevor Manuel. On a live interview on Radio 702 in January 2015, Ms Walter specifically mentioned Mr Gordhan, claiming that she had been given access to confidential SARS documents depicting his signature.
35.1.2. The Khanyane Panel report consisted of two documents, being a report dated 11 August 2014 nd a summary of the findings dated 12 August 2014 (the "report" and "summary") . The Panel found that it was unable to conclude that the evidentiary material presented by Ms Walter was credible or reliable (paragraph 18.1.2 of the report and paragraph 6.1 of the summary) and that she refused to make a statement under oath in the form of an affidavit despite being represented by counsel.
35.1.3. Notwithstanding this finding, the Panel recorded certain concerns regarding Van Loggerenberg.
35.1.4. These concerns were made by the Panel in circumstances where they did not afford Mr. Johann van Loggerenberg a right of reply before reaching such conclusions , as appears from paragraphs 4 and 5 of their summary . It has been consistently stated by Mr. Johann van Loggerenberg that had the Panel had the benefit of his input they would not have come to certain conclusions.
35.1.5. Of great concern is that this report, which was limited to a small number of SARS officials, found its way into the hands of the Sunday Times even before Mr. Johann van Loggerenberg had been given access to the report or an opportunity to respond to its findings . The Sunday Times had a front page report on the matter on the very Sunday following the Friday when the report was completed and provided to the Minister of Finance, Mr Nhlanhla Nene. Despite the fact that Mr. Johann van Loggerenberg requested SARS (in particular its company secretary , Dr Giorgio Radesich) to investigate this leak, SARS did not acknowledge his request or investigate this leak.
The second investigation
35.2. On 10 September 2014 the Acting Commissioner of SARS, Mr Ivan Pillay, established an external panel chaired by Advocate Muzi Sikhakhane , assisted by an attorney and two other independent counsel in order to investigate various issues emanating from allegations made by Ms Walter.
35.2.1. This process, much like the first one, did not give Mr. Johann van Loggerenberg a right of reply prior to the finalization of the report. In this regard I know that he insisted on such a right at the first appearance before the Panel and he repeated the request at the end of the process in writing via his attorneys. Ultimately, I know as fact that he was not afforded any right of reply to any aspect contained in the report prior to its publication;
35.2.2. Mr. Johann van Loggerenberg has to date not been given access to the final report, despite several requests to SARS for it.
35.2.3. Of great concern is that whilst this process was ongoing, information that was available to only a limited number of SARS officials, once again found its way in the hands of the Sunday Times. In this case the Sunday Times attributed its "sources" to "current and former senior managers in SARS" and had access to information about the legal fees that Mr. Johann van Loggerenberg had incurred to date and details concerning his legal advice. Mr. Johann van Loggerenberg requested SARS investigate the leak of information to the Sunday Times but the request was never answered or effected.
35.2.4. I do not know how the Sunday Times gained access to this report. On multiple occasions Deputy-Commissioner Ivan Pillay and Mr. Johann van Loggerenberg have advanced that:
35.2.4.1. . The "Sikhakhane report" is flawed in fact and law; it contains material omissions, misrepresentations and factual inaccuracies;
35.2.5. Mr. Johann van Loggerenberg has also advanced that:
35.2.5.1. The suggestion that he failed to mention the existence of the High-risk Investigations Unit at his first appearance before the Panel is false. The recording of the interaction between the Panel and Mr. Johann van Loggerenberg will prove that the opposite is true. Mr. Johann van Loggerenberg gave the Panel a clear brief on the units that fell under his management;
35.2.5.2. The assertion that he was an "apartheid spy" is not only false, but slanderous and has caused him immense reputational damage in the media and public domain . He has served the country and government with total dedication and his track record speaks for itself;
35.2.5.3. He was led to believe that the Panel's interests were focused on the allegations made by Ms Walter (as indicated to him by SARS). His response was, as a result thereof focused on such issues. In so far as the Panel had any questions about the erstwhile Special Projects Unit, (later the National Research Group and finally the High-risk Investigations Unit), they did not enquire about it and posed virtually no questions to him in this regard. He was therefore unaware of their specific and pronounced interest in the Unit and more so the allegations which began to feature in the Sunday Times;
35.2.5.4. All the findings and statements made by the Panel in respect of the charity that he is a director of, are to my knowledge incorrect and no attempt was made by the Panel to engage the entity or even ascertain the most basic assertions as finally presented in its report.
35.2.5.5. He submitted that had the second Panel offered him a right to reply, the Panel would not have come to the conclusions that it did.
The third investigation
35.3. By September 2014, following the arrival at SARS of Commissioner Moyane, his disbandment of the SARS EXCO and suspensions of Messrs Pillay, Richer and Van Loggerenberg - what in my view appears to be frivolous actions were instituted against Messrs Barry Hore (Chief Operations Officer}, Clifford Collings (Group Executive: Anti-Corruption and Security) and Yolisa Pikie (Executive to Deputy Commissioner Pillay). A third investigation was then launched by SARS under the guidance of KPMG, and Advocates Mike Van As and Nadine Fourie. To my knowledge, to date not Mr. Ivan Pillay, Mr. Pete Richer nor Mr. Johann van Loggerenberg have been engaged by any of these persons to ascertain their versions of events and despite them offering their willingness to assist SARS in such investigations.
The Inspector General of Intelligence investigation
36. Another relevant process that was unfolding just as the "Sikhakhane Panel" commenced, was an enquiry that was conducted by the Inspector General of Intelligence ("IGI"). Mr. Peter Richer and Mr. Johann van Loggerenberg prepared for and presented to the IGI on the basis what was believed the scope of their investigation was as stated in a press release issued by the Ministry of State Security in the following terms: "In the wake of weekend newspaper reports alleging improper conduct against persons reported to be associated with the State Security Agency, the Minister of State Security Mr David Mahlobo, MP has requested the Inspector General of Intelligence Advocate Faith Doreen Radebe to conduct an investigation in terms of the Intelligence Services Oversight Act, Act 40 of 1994. The investigation will seek to establish the facts and get to the bottom of the allegations made about members of the State Security Agency ." To my knowledge, to date Mr Ivan Pillay has never been called to provide evidence or testify before the IGI.
37. I am aware that Mr. Johann van Loggerenberg presented 34 instances to the IGI that were to some extent related, but stood alone with a basic synopsis of each one pertaining to the Intelligence Services. He identified over 60 individuals he believed should be interviewed by the IGI within this context. 20 He provided Advocate Govender of the IGI with multiple data and evidence, including a memory stick containing whatever information and data was in his possession. This included the data he received from Ms Walter.
Media reports
38. Multiple articles appeared in the media (initially the Sunday Times primarily) concerning allegations suggesting inter alia that:
38.1. "SARS bugged Zuma";
38.2. "SARS had a rogue unit";
38.3. "SARS denied the existence of the unit"
38.4. "SARS spied on politicians" ;
38.5. "SARS ran a brothel";
38.6. "SARS acted as bodyguards to infiltrate politicians";
38.7. "SARS was involved in the deaths of Messrs Nkadimeng and Radebe";
38.8. "SARS spied on Selebi";
38.9. "SARS rogue unit intercepted communications and had sophisticated equipment to do so";
38.10. "SARS meddled in political matters";
38.11. "SARS used CCTV to conduct surveillance on late Mr Radebe";
38.12. . "SARS rogue unit engaged in deals with taxpayers Wiese, King, Malema unlawfully or illegally";
38.13. "SARS rogue unit was formed, managed and utilized unlawfully and improperly"
39. To my knowledge none of these allegations or reports are true. All these articles were attributed to "insiders" i.e. either existing "SARS officials" or "former SARS officials" and in one case an "intelligence official". Once again, the Sunday Times was exclusively given access to documents that could only have been in the hands of few SARS officials. In many cases the documents handed to the Sunday Times contained unproven and untested allegations and were in raw format. Very few people would have had access to such information. To my knowledge SARS did not investigate these leaks in any manner or form as would normally been the case.
40. Mr. Ivan Pillay and Mr.Johann van Loggerenberg have repeatedly informed SARS that:
40.1. The manner in which the original Special Projects Unit came about is well recorded in SARS, was approved at Ministerial level, approved subsequently at institutional level and formed in a manner as any other unit was formed in SARS at the time. These units were formed, mandated, managed and functioned in a lawful manner at all times;
40.2. At no stage did such unit, or its later permutations21 acquire or utilize or possess any "spy equipment", especially equipment utilized to intercept communications . The Anti-Corruption and Security division (ACAS) within SARS acquired certain commercially available equipment of such a nature. In the circumstances, the allegation that such equipment was used or authorized by the SPU/NRG or HRIU is untrue and misleading ;
40.3. . The units did not "infiltrate" persons or entities;
40.4. A complete list of the so-called "dashboards" of each year of the existence of each unit held in SARS will display the details of projects and investigations that resided under them. At best these investigations can be described as data-mining, discreet investigations, elements of surveillance (in a manner no different to how private investigative firms or other state agencies that are not intelligence agencies conduct surveillance) , identification of potential witnesses and evidence and verification of assets, identities and addresses;
40.5. The units were managed like any other unit in SARS with an accounted for cost centre, HR files, leave applications , reflected on the SARS personnel database, were remunerated from a shared SARS cost centre, including travel, subsistence and the like;
40.6. The units did not have "front companies" or "false identities";
40.7. None of the units "bugged Zuma";
40.8. All the allegations published in the media comprise mostly of a little truth and much embroidery and fiction and each have an origin that was explained to SARS by Mr. Ivan Pillay, Mr. Pete Richer and Mr. Johann van Loggerenberg whenever they arose. At no stage does it appear that any effort was made by SARS to: a) investigate the leaks to the media; b) ascertain the true facts of the allegations and rumours; and c) protect the reputation of SARS by countering such rumours and allegations with the true facts. SARS did not even conduct the most rudimentary process of calling the SARS officials who made such allegations , requesting them to submit their allegations under oath and requesting specific details of the events i.e. who, who else, when, why, how, dates, times, places - which I verily believe would have easily enabled SARS to counter these allegations publicly and protect its reputation. Instead, these allegations were simply left unaddressed within SARS and in the media. It leaves me with the inescapable conclusion that these "narratives" and "stories" were considered convenient and led to very drastic steps by the Commissioner since September 2014 that impacted very negatively on SARS.
My concerns
41. I record the following concerns:
41.1. It would appear that none of the institutions or investigative bodies to whom the true facts had been provided had considered or referred to any of the very serious allegations and substantiating evidence in respect of Mr. Peega, Ms. Walter and Colonel Niemman mainly, as well as other persons;.
41.2. . Neither the "Sikhakhane Panel" nor the IGI, SARS or the Hawks have made any attempt to engage with Mr. Ivan Pillay, Mr. Peter Richer or Mr. Johann van Loggerenberg about the information that should be of a far greater concern than what SARS has been pre-occupied with;
41.3. None of the SARS officials affected by the allegations advanced by Ms Walter, Mr Peega and others - Messrs Ivan Pillay, Peter Richer, Johann van Loggerenberg and Yolisa Pikie or any other SARS employees - by way of complaints, media source reports, radio interviews and television broadcasts have been allowed by SARS, nor requested by SARS to assist SARS in defending its public reputation by stating the correct facts;
41.4. Mr. Johann van Loggerenberg has on multiple occasions requested SARS, without success, to act against Ms Walter in respect of evidence he provided to them. Instead Ms Walter has instituted a combined summons against SARS and Mr. Johann van Loggerenberg in his capacity as an employee of SARS. In the circumstances, I am left with the distinct impression that the allegations by Mr. Peega and Ms Walter, which are unsubstantiated and unsupported appear to carry credence in certain quarters, at the same time when a list of activities have been highlighted which require at the very least SARS and the Hawks to act against her and others.
Conclusion
42. In the circumstances, it is my view that it would be in the interests of the SCOF and the JSCI to engage with SARS and request them to get Messrs. Ivan Pillay, Pete Richer, Johann van Loggerenberg and Yolisa Pikie to make submissions to the committees in this regard.
43. . I have known and worked with the individuals listed above for more than a decade, often under difficult circumstances and I have never had any reason to doubt their integrity. They have each played key roles in the development of SARS and in particular SARS's contributory role in combating organized crime.
In my experience they have always acted without fear or favour and in the best interest of the country, its citizens and the fiscus. Their track records speak for themselves. I believe it to be a travesty of justice if matters are left to continue at SARS as they have been since September 2014. We would all be failing in our collective responsibility towards the fiscal future of our country if these matters are not properly interrogated. This is what motivates me to make this submission to you for consideration .
Yours faithfully,
Adrian Lackay Sent electronically.
Footnotes:
1This forms part of what was submitted to SARS, a nd the so-called "Sikhakhane Panel"
2 'This is available in the archives at SARS.
3 Since the meeting was recorded without his consent, but on behalf of the SSA, the SCOF and JSCI should request a copy of the recording of this meeting from the SSA.
4 An email from Mr. Johann van Loggerenberg addressed to the auditor concerned dating from time andconfirming will be available in the archives of SARS
5 Multiple instances where this occurred are reflected in whatsapp texts exchanged within the context of the private relationship.
6 Carnilinx (Pty) Ltd ("Carnilinx"), specifically to one of its directors, Mr Adriano Mazzotti.
7 Email to this effect was sent to the client "Carnilinx", SARS Legal Administration, SARS Enforcement.
8 Email to this effect was sent to the members of the body, SARS Legal Administration, SARS Enforcement.
9 There is an e-mail and a sms text from Ms Walter confirming this. This information also forms part of the affidavit of Van Loggerengberg and was submitted to SARS, the so-called "Khanyane panel" and the so-called "Sikhakhane Panel"
10 This forms part of what was submitted to SARS, the so-called "Khanyane panel" and the so-called "Sikhakhane Panel"
11This forms part of the affidavit as was submitted to SARS, the so-called "Khanyane panel" and the so-called "Sikhakhane Panel"
12 Various letters authored by van Loggerenberg in his official capacity at the time, and a meeting and letters addressed to General Moonoo and General Dramat of the Hawks and Detective Services will reflect this. In addition, he drafted a letter for the Acting Commissioner which to my knowledge was utilised to brief the President of South Africa in this regard during February 2014.
13 "This e-mail was followed by a direct apology from her to Mr Van Loggerenberg.
14 A specific text message sent by Ms Walter to Mr Van Loggerenberg in January 2014 clearly demonstrates this.
15 This was clearly incorrect in light of the fact that they only met in 2014
17 This forms part the so-called "Khanyane panel" and the so-called "Sikhakhane Panel" and is recorded in text messages exchanged.
18 This forms part of the so-called "Sikhakhane Panel" and a copy of this email was attached as annexure.
19 This forms part of what was submitted to SARS, the so-called "Khanyane panel" and the so-called "Sikhakhane Panel" as well as the Inspector General of Intelligence
20 The interview was recorded by the !GI and these narratives should be available to the JSCI.
21 Special Projects Unit,National Research Group and lastly High-risk Investigations Unit
22 Ms.Walter confirms this in text to Mr Van Loggerengberg. This was submitted to SARS,the so-called "Khanyane panel" and the so-called "Sikhakhane Panel"