🔒 Adrian Lackay: How Tom Moyane used lawyers, media to capture SARS

LONDON — After a R12m defamation gag was removed last week, former SARS spokesman Adrian Lackay tells us how a once proud institution was captured by forces of darkness. – Alec Hogg

This is The Rational Perspective. I’m Alec Hogg, in this episode, Adrian Lackay, the ultimate insider on the capturing of SARS.

When future historians chronicle the beacons of resistance during South Africa’s destructive Zupta era, they’re sure to be surprised by how much extraordinary courage was displayed by seemingly ordinary people. Adrian Lackay is one of the most obvious examples. Our paths crossed more than a dozen years ago when South Africa’s tax collection agency, SARS was in combat with serial entrepreneur Dave King, the one-time billionaire tax fugitive who disputed that he owed anything, but eventually made a R706m settlement. At the time, Lackay was the SARS communication manager.

Judging by our interaction he was deeply trusted by National Commissioner Pravin Gordhan who has gone on to play a key role at the very highest level in South African governance including a stint as Minister of Finance and his current position as Head of State Enterprises. As you’ll hear in what follows, like his former boss, Lackay’s integrity caused him to be put through the mill by the forces of darkness that at one point seemed to have complete control over the important levers of the South African state. Last week Lackay’s three-year legal fight with the now suspended SARS Commissioner, Tom Moyane finally ended when a R12mn lawsuit was withdrawn. Let him summarise.

Rogue: The Inside Story of SARS's Elite Crime-busting Unit is a book co-authored by Johann van Loggerenberg & Adrian Lackay.
Rogue: The Inside Story of SARS’s Elite Crime-busting Unit is a book co-authored by Johann van Loggerenberg & Adrian Lackay.

I am the former spokesperson for SARS. I resigned and then wrote to Parliament to explain to them that since Moyane took office the following actions by him is creating great instability at the revenue service and it will ultimately lead to a loss of critical skills and potential revenue shortfalls, which will pose specific risks to our fiscus. All of this was of course based on Moyane’s actions when he became Commissioner in September 2014, suspending his entire executive committee. He instituted a number of suspensions against people based on allegations that they punted through the Sunday Times of an illegal covert unlawful rogue unit at SARS that spies on taxpayers that committed a great number of offences. Some of us who started to challenge that became increasingly the victims of bullying; we were muzzled and ultimately worked out of the institution.

He also by that time suspended the Deputy Commissioner, Mr Ivan Pillay who has a long and distinguished record of building SARS, being part of the management team that built SARS into a model revenue and customs administration that was respected in this country and globally. What we’ve seen by 2018 was the systematic destruction of SARS (there’s really no other way to put it) where it leaves the country with diminishing levels of tax compliance with revenue shortfalls year-on-year and it now is a problem that the fiscus and the Minister of Finance are confronted with. Therefore, I’m very happy that at least the litigation against me has been withdrawn, but I think that as a country we are still dealing with the aftermath of that very destructive reign of Moyane at SARS.

Nicely pulled together and an apt taster for his story, Lackay joined the SARS Communication Department in 2003 and worked his way up becoming its official spokesman a few years later. After leaving the institution in 2015, he turned whistleblower. Moyane then lashed back by charging that Lackay had broken an oath of secrecy.

It was a standard procedural thing that all employees sign an oath of secrecy where you commit to protecting taxpayer confidentiality, which is a legal requirement and that you will be sensitive with SARS information that should be kept confidential.

That’s quite an interesting and a very powerful document given that it’s also law. Moyane came in in September 2014. Five months later, you decided to resign. What happened in those five months that caused you, after being at the institution that you just said that you were very proud of for a dozen years, to decide to leave?

I think for me and many others it was that the work conditions became unbearable. From October 2014, less than a month in the job, these headlines started running in the Sunday Times of a rogue unit that did a number of things. The reporting by that newspaper was based primarily on leaked confidential SARS information and confidential taxpayer information and it was very clear to many of us that it could only have come from within the institution, so a very specific, what I call, a “disinformation campaign” was designed and given effect from people within SARS.

When some of us stood up and said to Moyane, “Look, this is wrong, we need to investigate what is happening here” very specific actions were taken to either threaten or suspend people, remove their duties as was the case for me in that I could no longer engage the media and do my job as a spokesperson because for years we’ve denied these allegations and any impropriety. In my view, SARS was a transparent institution and that its work was commendable both in revenue collection and in investigations into taxpayers including criminal investigations into syndicates and into organised crime. The allegations in the Sunday Times were used as a basis to act against people.

Read also: Jacques Pauw: How Sunday Times helped destroy Hawks, SARS

I could see wrongs being done, I could see that good people and their reputations specifically in the form of Mr Ivan Pillay, the Deputy Commissioner and Mr Peter Richer, who was an Exco member of SARS and others were being harmed, silenced and hounded out to the extent that some of them still face criminal charges four years later. In that period also the Chief Operating Officer, Mr Barry Hore resigned, many people under him resigned and within that last segment, very critical skills of the SARS business systems and operations resided and it became apparent that the institution was in trouble, but that the attempts to destabilise it were very determined attempts by the new commissioner Mr Moyane. Because of those factors, I couldn’t stay there any longer. I was not going to be part of their efforts to destroy the institution and people who have worked there for many years whom I know to be committed, honest, hardworking civil servants.

If you remove yourself from the situation and you look at it from outside, but here you have a new chief executive, here you have the Head of Communications or the spokesman of the organisation, there’s negative publicity in a big newspaper, surely the first question would be from the new chief to say to the Head of Communications, “Hey, what’s going on here, why are you not engaging these people, why aren’t you getting them to at least get our side of the story?” Was there ever that kind of interaction with you and Moyane?

Our best attempts, we worked with an external law firm, which was appointed to present him with facts and historical records of what really was going on. He refused to listen to any of us. When Mr Pillay challenged findings made against him about a rogue unit by a panel of investigation, Moyane refused to read, study, hear, or consider any of those representations. Therefore, it became clear that some people wanted this rogue unit story to stick.

They wanted to give it credibility because that is the basis on which they could proceed to get rid of people and that in my opinion was the ultimate aim, so he wouldn’t listen to advice, he wouldn’t listen to information or any historical records of what SARS was, how various investigation units were established, what they did, who was in charge of them. He wouldn’t consider any of those representations. Then he acted with impunity to instil fear and as I said, to get rid of people and literally to hound them out to the extent that their reputations are damaged and they would never find work anywhere else again.

So you resigned in February 2015, you left the organisation after your months’ notice in March 2015 and a few days later presented a document to two standing committees at Parliament. What motivated you to go there rather than to go say to the media?

Parliamentary committees fulfil oversight functions as part of the substructures of our legislature. They have to look at state institutions and the conduct of state institutions and in my opinion that was the most appropriate place to exercise my democratic right to petition Parliament and I put facts before them to the best of my ability. I said to them that wrong things are happening. I presented the risk to them that may follow. I said to them that since Moyane was appointed the following actions have been taken and I can foresee problems in future. I advised to the committees, “If you don’t believe me, here’s a list of people that you can call to appear before you and to give their own evidence”, so it was really an SOS and a cry for help, and some intervention by two committees, which I believe, had oversight over the institution.

Unfortunately, the response was that they refused to consider or to deal with the substance or the merits of what I had put before them. Finance refused that my letter be tabled and discussed by other MPs and ultimately Dr Deon George, a former member of the DA on the standing Committee of Finance obtained a copy of the letter and published it in the media. Based on that of course, Moyane and SARS reacted and instituted the civil claims against me.

It’s interesting reading through that document that Moyane himself wanted R2m from you, whereas the claim from SARS was for R10m. Why, personally, was there something that went down between the two of you?

No, nothing that I can recall. I think that it was just a very vindictive attempt to intimidate and silence me through litigation, there’s this big, powerful institution which can afford any lawyers and advocates that they want to put on brief and to say, “You must withdraw this otherwise we will sue you”. The amount itself, any lawyer will tell you is absolutely exorbitant. There’s been no claim to that effect ever agreed to by a court of law in this country, so it was firstly seeking to intimidate and secondly to cause financial ruin to someone like me and to basically silence any opposing view or voice that said, “What you guys are doing is wrong and I don’t agree with it”.

I think that was the strategy and I don’t know why he took the action in his personal capacity, it’s still baffling to me to this day, but luckily I was supported by a wonderful legal team at the law firm Webber Wentzel, also the Legal Resources Centre assisted me to get proper legal representation and we could go to court in 2016 to argue the matter, but it’s been a confusing legal strategy on the part of SARS and Moyane because he’s suing in his personal capacity using lawyers that SARS uses. In other words, the taxpayer funds his claim.

It’s also based on the document or the oath that you signed in 2010. What did your legal team make of that?

That was part of their claim, but I don’t believe that it has substance. I don’t think that I put anything that violates taxpayer confidentiality before Parliament. I put information that was in the public domain before the committees, I believe that it was my democratic right to do so, to approach Parliament as a citizen and a taxpayer in this democracy and I believe that there is a strong element of public interest in this whole legal defence that we argued before court because clearly actions by a public institution against many people are deemed to be wrong, possibly unlawful and I couldn’t keep quiet. Therefore, I exercised that right. I don’t believe that I’ve violated taxpayer confidentiality and I don’t think any court will have found against me in that regard.

Therefore, it was more a question of shutting you up by keeping you busy with the lawyers. How did you afford to go to court?

Well, I couldn’t. The Legal Resources Centre helped, Webber Wentzel was very accommodating with their legal team, and the advocate, Max Du Plessis took the matter. I could in no way afford to defend myself against this, but I wasn’t going to keep quiet. Other civil society organisations came on as well. Freedom of the Law, Helen Suzman and Ahmed Kathrada lent their support in various ways to a legal defence, but it was really through the law firm and the advocate being really accommodating in representing me that enabled me to defend myself before court, but there’s no way I could’ve afforded it myself.

Abuse of the system wasn’t restricted to the Court of Law; it was also deployed by the Zuma associates in the Court of Public Opinion through one of South Africa’s biggest selling newspapers, the Sunday Times. I asked Lackay why he, a skilled spokesperson whose stock in trade is engaging with the media wasn’t able to get the newspaper to realise it was being played for a Patsy.

Firstly, they wouldn’t listen; there was a group of three or four of them who were so convinced by the information in their possession that it was factual. We tried to explain to them, “What you are reporting is wrong, you are being misled, information is being put to you in a manner that is selective and untruthful” and they wouldn’t listen, so attitudes hardened very quickly to the point of almost a complete breakdown. In December 2015, they were challenged before the ombud by Minister Gordhan and by Ivan Pillay and Johan van Loggerenberg and the newspaper lost spectacularly. They then proceeded to engage us and in April 2016 they issued an apology and to an extent they retracted the articles, admitted to serious flaws in their editorial processes and so on. In turn the affected parties, Pillay and van Loggerenberg said, “We won’t consider further litigation against them” because by that time in 2015/2016 all of us were effectively unemployed.

If you want to sue for defamation, you have to take on a big newspaper and media group, which we don’t have money for. Therefore, it was really to keep public support growing, to keep civil society, asking pertinent questions, and to try to keep people accountable in that way, so outside of the courts because that wasn’t really a route any of us could afford. If you’ve been a victim of such a campaign, it’s difficult to get a form of justice in court. You would also know that Mr Pillay and van Loggerenberg still face criminal charges, so our priority really is to get money for their legal defence and proper representation because you have to defend them against these charges, which can just drag on and on and it becomes very expensive.

I think that the Sunday Times also suffered damage to their own reputation and I don’t know at what point, either the newspaper or the journalists who work there would step forward and say, “We want to account, we did wrong and we apologise”. I don’t know whether that will happen, I think it should happen, but there’s very little that we can do to seek a form of justification beyond what has happened until now.

What about reinstatement at SARS?

I don’t know. I think where the institution and the pressures that it’s under to collect revenue, they definitely need someone like Ivan Pillay back to get them out of this hole, to build public trust and the capability of the institutions; they need Johann van Loggerenberg back. Johann is a dear friend, but he’s an absolute professional colleague. He is a dedicated investigator. He was passionate about his work as was Mr Pillay and many other people have left. I don’t think I’ll go back to SARS in its current form or state. I think they do need a lot of the past expertise that has left, but I don’t know how they will recover from where they are right now.

In December 2017 4,500 ANC members got together at an elective conference to vote for their new president, 2,440 of them opted for Cyril Ramaphosa to become its and thus South Africa’s new leader. That gave him a margin of just 179 votes over then President Jacob Zuma’s preferred candidate, his ex-wife, in percentage terms, a 54% to 46% margin. The victory was only secured through the last-minute switch by now Deputy President, David Mabuza who was actually standing on the Zuma ticket. Given what is now emerging, Adrian Lackay is only one of many South Africans grateful for that result, no matter how controversially achieved.

This has been The Rational Perspective, until the next time, cheerio.