Counsel for the South African Revenue Service (Sars) got a stern warning on Thursday from Commissioner Joyce Nkopane, who presides over the arbitration hearing of former Sars spokesperson Adrian Lackay at the Commission for Conciliation, Mediation and Arbitration (CCMA).
Lackay alleges that he was subjected to constructive dismissal, when then newly-appointed Sars commissioner Tom Moyane made it impossible for him to do his job effectively by withholding basic information from him that he needed to exercise his duties. He resigned in February 2015, less than five months after Moyane took office amid a media storm over a so-called ‘rogue unit’ operating within Sars.
The articles were published in the Sunday Times, although it has since admitted they were flawed and has withdrawn them.
Nkopane ruled on Thursday that she would allow Sars counsel advocate Wisani Sibuyi to cross-examine Lackay on an email he sent in November 2014 to a friend, in an apparent effort to look for another job. He earlier testified that he only began to consider resigning early in December 2014.
Advocate Paul Pretorius (SC) who represents Lackay, accused Sibuyi of ambushing him, since Sars failed to produce the email earlier, when the two legal teams exchanged relevant documents in preparation for the hearing. Sibuyi started his cross-examination of Lackay early on Thursday morning, but first mentioned the document after lunch. He then said the Sars team only discovered the document the previous night.
Pretorius said it needs to be established whether Lackay’s privacy was compromised when Sars obtained the email and argued that Lackay is being prejudiced by the late introduction of the document, since he is not allowed to consult with his legal team during cross-examination.
When he asked why Sibuyi failed to mention the new document first thing that morning, Sibuyi said other people at Sars discovered it the previous evening, but it only came to his personal knowledge during the tea break and he only decided during lunch that he should question Lackay about it.
Nkopane allowed a short recess for Lackay to consult with his legal team, but limited the consultation to the specific document. She said the Labour Relations Act requires that she consider all substantive material related to the matter before her and she had to balance that with the prejudice to the parties.
Nkopane said Sibuyi should have warned Lackay’s legal team that he was going to submit a new document and described his conduct as “unacceptable”. She warned him that she would not allow him or any other party to bring any more new documents.
Earlier, Sibuyi cross-examined Lackay on his allegations that he could not get the information from Moyane that was necessary to do his job.
He referred to Lackay’s close relationship with previous commissioners Pravin Gordhan and Oupa Magashula and acting commissioner Ivan Pillay, saying Lackay could “barge” into their offices at any time.
Lackay said he had a working relationship with Gordhan, Magashula and Pillay where “I had freedom to interrupt on an urgent basis meetings of for example the executive if a (media-related) matter arose that urgently needed their attention”.
Sibuyi put it to Lackay that Moyane did not move his office to another building that Lackay did not have access to as Lackay earlier testified. He said Moyane kept his main office where previous commissioners had their offices, about 30m from Lackay’s office. Sibuyi said Moyane merely opened another office in a nearby building, within walking distance of the main office and Lackay’s office.
Lackay said: “It became known that Moyane moved to that office. I’m at difficulty to answer with any authority. Details of the move were never shared with me..”
Sibuyi accused Lackay of not establishing a relationship with Moyane and of not being interested in doing so.
“I deny that emphatically. I’ve testified what my actions were since Sars was informed of Commissioner Moyane’s appointment on September 23 throughout October (2014). There was no change in my duties or relationship with the commissioner. I stand by that,” Lackay responded.
Sibuyi put it to Lackay that he never made an effort to get hold of the commissioner for the purpose of establishing the core relationship like those he had with the other commissioners.
Lackay responded: “I strongly disagree.”
Sibuyi questioned lackey in detail about the few meetings in person – not more than five he said – between him and Moyane.
Lackay testified about a meeting on January 22 2015. He strongly denied that Moyane called him to his office on that day, complaining that Lackay was not available. “By then the commissioner took a number of actions of which information was withheld form me. “
This included information about the suspension of senior Sars officials, including deputy commissioner Ivan Pillay and the whole Sars executive.
Asked why, if Lackay was finding it difficult to find the commissioner, he did not phone or SMS him. “How was the commissioner supposed to know you needed him if you didn’t contact him? Is he supposed to be a sangoma or something?” he asked.
Lackay said during the meeting he asked Moyane why he suspended Pillay and Sars head of planning Peter Richer the previous month, why instruction was given to issue a media statement about the suspensions and why he wasn’t informed.
He said he asked Moyane what his “end game is” regarding the suspension of senior Sars officials. “I do not recall receiving any helpful or meaningful responses from the commissioner, other than a remark on the suspension that he wants to clear the air. I still don’t understand what that means,” Lackay said.
The cross-examination will continue on Friday. The hearing is expected to be adjourned then and continue at a date that still has to be determined.
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