Shortly after his appointment, South African Revenue Service (Sars) commissioner Tom Moyane started excluding the institution’s former spokesperson, Adrian Lackay, from critical media-related issues, Lackey told an arbitration hearing at the Commission for Conciliation, Mediation and Arbitration (CCMA) on Monday.
Lackay was the first witness. He claims he was subjected to an unfair constructive dismissal by Sars.
According to an earlier ruling, the media are allowed to attend the hearing and report on it.
Lackay resigned form his position in February 2015, about five months after Moyane took office and amid a continuing media storm fuelled by the Sunday Times. The paper alleged among other things that a covert intelligence unit was unlawfully operating within Sars and dubbed it the “rogue unit”.
Lackay testified that Moyane never raised or addressed with him the reasons for his exclusion or any dissatisfaction with the way he performed his functions within Sars.
He said he had a close working relationship with three consecutive commissioners based on trust. He had free access to the commissioners, which was essential for him to effectively and timeously respond to the constant stream of media enquiries.
It was his responsibility to deal with such enquiries, respond truthfully and be as transparent as possible while adhering to legislation regarding the confidentiality of personal tax matters. To do this he sourced information from other Sars colleagues. He further identified risks that could impact on the reputation of the institution or its leaders and advised top management about strategies to mitigate such risks.
He also had regard for his own reputation, since a media spokesperson who misled journalists or who was found to be less that truthful, would lose the trust of the media and be virtually unemployable in a similar position in future, Lackay testified.
Lackay described how allegations of a covert intelligence unit within Sars surfaced from time to time. Around 2008/9 he was for example part of ‘Operation Snowball’ that successfully refuted such allegations.
From 2013 to April 2016, the Sunday Times ran a series of prominent articles that reflected negatively on Sars. These articles gave rise to further media enquiries and there were clear indications that documents were leaked from within Sars.
Late in 2014 then-acting commissioner Ivan Pillay appointed a panel, led by Advocate Muzi Sikhakhane SC, to investigate concerns about certain practices within Sars.
It was shortly thereafter that Moyane assumed office on October 1 2014. Initially the relationship between Lackay and Moyane was cordial. Their offices were next to each other and he had adequate access to Moyane, Lackay testified.
On October 3, Sars received a media enquiry from journalist Piet Rampedi from the Sunday Times, relating to a so-called rogue unit within Sars. He forwarded the questions to colleagues at Sars and Moyane was given a briefing about previous allegations in this regard, how it was dealt with and a suggested response.
Moyane approved the draft response and it was sent to the Sunday Times.
The following week, the Sunday Times published a front page lead article under the headline ‘Sars bugs Zuma’.
Lackay testified that the article did not reflect the responses Sars gave to questions posed to it prior to publication.
A Sars team including external legal advisers was put together to brief Moyane about the origin and purpose of the National Research Unit that had been accused of conducting covert investigations. The information was sourced from the Sars archives.
Before such a briefing could take place however, Moyane sent an SMS to Lackay’s line manager Giorgio Radesich asking: “Why are you conspiring against the commissioner?”.
Lackay said he was very surprised and thought it indicated “some tacit approval for the proposition that there was a rogue unit operating within Sars”.
Sunday Times again sent Lackay questions indicating it had knowledge that the Sikhakhane panel’s report had been handed to Sars and Lackay realised the newspaper might be in possession of a copy of it.
Lackay said he had no such knowledge and responded that the investigation was ongoing.
On November 9 the publication published a front-page lead article under the headline: ‘Tax man’s rogue unit runs brothel’.
By then Moyane had moved his office to another building to which Lackay did not have access. He communicated with Moyane by email or SMS, but the commissioner did not always respond in time. As a result, Sars was often absent from conversations about its affairs.
Lackay learnt that Moyane had been in possession of the Sikhakhane report, but had failed to brief him for the purpose of dealing with media enquiries and planning a media strategy for the release of the report.
Because he was kept in the dark he inadvertently earlier lied to Sunday Times, he said.
Lackay also realised that the Sunday Times was in possession of a copy of a letter Johann van Loggerenberg (then Sars group executive for tax and customs enforcement investigations) wrote to Moyane and had handed to him in a single hard copy.
This was the latest in a series of documents leaked from within Sars to the Sunday Times. On Monday November 10 2014 he wrote an email to Moyane asking him to launch an investigation into the leaks.
Moyane did not respond in writing and Lackay at that stage felt their working relationship was at an ultimate low point and that Moyane did not trust him or take him into his confidence.
Moyane next called a meeting of the Sars executive and extended senior management. Lackay was told to attend. At the meeting Moyane dissolved the Sars executive based on the Sunday Times articles. He also commented that he did not take kindly to receiving emails from colleagues accusing other Sars employees of leaking documents to the media and asking him to investigate it.
Lackay saw this as a direct response to his earlier email to Moyane.
He testified that 55 senior managers left Sars between September 2014 and March 2015. Sunday Times in April 2016 withdrew its articles after three rulings by the Press Ombudsman against it.
The hearing will continue on Tuesday.
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