Ivan Pillay. Picture: TISO BLACKSTAR
Ivan Pillay. Picture: TISO BLACKSTAR

In a move which has been hailed as a sign of the National Prosecuting Authority (NPA) getting back on track, national prosecuting boss Shamila Batohi withdrew criminal charges against former senior SA Revenue Service (Sars) officials in what has become one of the most sensitive political cases in recent years.

EFF leader Julius Malema, however, on Sunday said his party would bring an application to review Batohi’s decision in court, as the party wanted a “sober, neutral judge” to review the matter. The decision of the national director of public prosecutions (NDPP) was irrational and factional, he said.

Batohi announced in a statement on Friday that she had decided to withdraw charges against former deputy Sars commissioner Ivan Pillay, Andries Janse van Rensburg and Johan van Loggerenberg.

The trio were charged with the illegal interception of communications and corruption in relation to the so-called rogue unit in Sars, in which it was alleged that Pillay and Van Rensburg authorised the installation of surveillance equipment at offices of the now defunct Scorpions, as well as the interception of communication at those offices, without an interception direction.

Parts of the docket in this now withdrawn matter formed part of public protector Busisiwe Mkhwebane’s report which found that public enterprises minister Pravin Gordhan illegally established the “rogue unit” when he was Sars commissioner.

Mkhwebane also said in the report that she had evidence that the unit had conducted irregular and unlawful intelligence operations.

The matter has been ventilated in many forums since the allegation first emerged in 2014, but the narrative of the existence of a rogue unit was widely debunked until Mkhwebane released her report, which also relied on  classified documents from the inspector-general of intelligence.

Gordhan is in the process of taking Mkhwebane’s report on judicial review.

Mkhwebane’s spokesperson, Oupa Segalwe, said whatever happened at the NPA had no bearing on the public protector’s investigations as the former is concerned with criminal offences while the latter’s focus is maladministration.

Batohi withdrew the charges against the three after it was recommended by a review panel tasked to look at the case that there was “no reasonable prospects of a successful prosecution” in the matter.

The panel was made up of the director of public prosecutions, Barry Madolo, the acting director of public prosecutions, advocate Indra Goberdan, and deputy director of public prosecutions Adrian Mopp.

Bernard Hotz from Werksmans Attorneys, who represented the trio, said his clients applauded the NDPP and her team as she had a “momentous task” to rebuild the NPA.

He said the representations made by them were not based on rhetoric but on evidence which showed there was no merit to the prosecutions.

“We’ve got to realise that my clients were the victims of state capture,” Hotz said.

He said all one has to do was read the report by retired judge Robert Nugent which was released after the inquiry and which looked into the damage done to Sars under former commissioner Tom Moyane to see what had truly happened at the tax agency.

“All that my clients were guilty of was to be good, loyal, intelligent civil servants that were committed to this country,” Hotz said.

Former Constitutional Court justice Johann Kriegler, chair of Freedom Under Law, said that while it was no doubt a “grave disappointment for certain resourceful politicians, one-eyed conspiracy theorists, media gossips and other ‘useful idiots’ of the state capture brigade”, it was good news for his organisation.

This was especially so given that the three accused now had their names cleared.

“For far too long they have been the targets of the vicious lies of the ‘rogue unit’ fantasy, their lives and reputations irreparably damaged,” Kriegler said.

Glynnis Breytenbach, former senior state prosecutor and DA MP, said the way Batohi had dealt with the matter was how the NPA was supposed to go about its business.

Scrupulously fairly, scrupulously diligent. It is not a game. Shamila Batohi has made not only the correct decision but a courageous one. It indicates an NPA getting back on the tracks of the rule of law,” Breytenbach said.

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