COMMISSIONER COPY
INVESTIGATION REPORT
CONDUCT OF MR JOHAN HENDRIKUS VAN LOGGERENBERG
SOUTH AFRICAN REVENUE SERVICE
By
ADV. MUZI SIKHAKHANE
Assisted by
ADV. NASREEN RAJAB-BUDLENDER
and
ADV. PATRICK RAMANO
Attorney for SARS:
Mr. Imraan Mahomed: Hogan Lovells Attorneys (SA)
INTRODUCTION
1 On 5 September 2014, by Notice and in terms of Section 9 of the South African Revenue Service Act 34 of 1997 ("the SARS Act") the then Acting Commissioner of the South African Revenue Service ("SARS"), Mr. Ivan Pillay ("Mr. Pillay") appointed us as an external panel to conduct an investigation into the allegations of impropriety against Mr. Johan van Loggerenberg ("Mr. Van Loggerenberg"), SARS's Group Executive: Projects, Evidence Management and Technical Support. A copy of the letter of appointment including the terms of reference is annexed hereto as Annexure "SR1".
SARS AND ITS STATUTORY MANDATE
2 SARS is an integral part of a democratic South Africa and the heartbeat of the country's economy. It's hard-working and professional staff remains the envy of many developing and developed countries alike. It has been and remains the epitome of administrative efficiency . It is for this reason that any sign of inappropriate conduct within the ranks of SARS must be nipped in the bud before it affects the entire organization and the reputation of South Africa as a modern and democratic state.
3 SARS is a creature of statute. Its statutory mandate is governed by the principles set out in Section 195( 1) and (2) of the Constitution and flows primarily from the SARS Act. The Constitution and these regulatory schemes enshrine a unique and special kind of norm, guiding and directing human and organizational conduct. They occupy the top position of the normative pyramid and assist in judging conduct of those entrusted with particular obligations. The SARS Act places particular obligations upon SARS and the Commissioner, including those officials who act on his/her behalf.
4 The objectives of SARS are listed in section 3 of the SARS Act as follows: "SARS's objectives are the efficient and effective-
(a) collection of revenue; and
(b) control over the import, export, manufacture, movement, storage or use of certain goods."
5 The functions of SARS are provided for in section 4:
"(1) To achieve its objectives SARS must-
(a) secure the efficient and effective, and widest possible, enforcement of-
(i) the national legislation listed in Schedule 1; and
(ii) any other legislation concerning the collection of revenue or the control over the import, export, manufacture, movement, storage or use of certain goods that may be assigned to SARS in terms of either legislation or an agreement between SARS and the organ of state or institution concerned;
(b) advise the Minister on-
(i) all matters concerning revenue; and
(ii) the exercise of any power or the performance of any function assigned to the Minister or any other functionary in the national executive in terms of legislation referred to legislation referred to in paragraph (a); and
(c) advise the Minister of Trade and Industry on matters concerning the control over the import, export, manufacture, movement, storage or use of certain goods.
(2) SARS must perform its functions in the most cost efficient and effective manner and in accordance with the values and principles mentioned in section 195 of the Constitution."
THE COMPLAINT
6 The investigation arises from a complaint made against Mr. Van Loggerenberg by Ms. Belinda Walter ("Ms. Walter"), an attorney and director of Belinda Walter Attorneys in Pretoria. Following a rather acrimonious end to a romantic relationship between Ms. Walter and Mr. Van Loggerenberg on 27 May 2014, Ms. Walter filed a formal complaint against Mr. Van Loggerenberg .
7 The essence of Ms. Walter's complaint is that Mr. Van Loggerenberg ran a covert unit within SARS, unlawfully revealed taxpayer information, was engaged in unlawful interception of conversations and initiated their romantic relationship with the sole purpose of obtaining incriminating information about her clients in the tobacco industry . This complaint has led to widespread media speculation about SARS and the alleged unlawful or unethical conduct of Mr. Van Loggerenberg
8 The details of the above allegations are contained in various communications to SARS and the media. The media reports that followed painted a picture that Mr. Van Loggerenberg and Ms. Walter were entangled in what was referred to in certain newspapers as "SARS LOVE AFFAIR" "SPY LOVE GETS UGLY" "SPIES AND LIES: AS LOVE AFFAIR ENDS", and so on.
9 It is common cause that Mr. Van Loggerenberg and Ms. Walter engaged in a romantic relationship from 25 October 2013 to 27 May 2014. It is equally common cause that Mr. Van Loggerenberg has been romantically involved with no less than three female fellow employees at SARS, the names of which will be revealed later in this report. While they didn't report directly to Mr. Van Loggerenberg at the time of the relationships, at least two of the persons in question, were Mr. Van Loggerenberg's subordinates.
10 Significantly, at the time the romantic relationship between Ms. Walter and Mr. Van Loggerenberg started Ms. Walter was the Chairperson of the Fair Trade Independent Tobacco Association ("FITA"), whose members were the subject of pending investigations by SARS. Mr. Van Loggerenberg had been directly involved in these investigations .
11 It is also common cause that Ms. Walter was a covert agent for the State Security Agency ("the SSA"), previously the National Intelligence Agency ("the NIA") since approximately October 2010. She had also acted in a professional capacity as the attorney for several clients in the Tobacco Industry including Carnilinx Tobacco Company (Pty) Ltd ("Carnilinx") before and during the course of her relationship with Mr. Van Loggerenberg.
12 The complaints by Ms. Walter are also detailed in the report of SARS's internal investigation, which was led by Mr. Moeti Kanyane ("Mr Kanyane") of Gildenhuys Malatjie Attorneys Incorporated. We were furnished with the report of this panel. However, we sought to conduct this particular investigation without any regard to the findings contained in that report. We considered afresh all the evidence that was placed before it. Its report and findings, though related to our terms of reference, were not considered as part of our investigation.
TERMS OF REFERENCE
13 The precise terms of reference (contained in Annexure "SR1") and the issues upon which our recommendations are sought by SARS are the following:
13.1 Whether there was any breach of the confidentiality provisions contained in Chapter 6 of the Tax Administration Act 28 of 2011, as amended ("the TAA") relating to the breach of the SARS oath of secrecy;
13.2 Whether there was any breach of section 7(a) and/or (b) of the TAA, as amended, relating to conflict of interest;
13.3 Whether Mr. Van Loggerenberg deliberately set out to establish a relationship with Ms. Walter for the purposes of obtaining incriminating information about her clients, many of whom are suspected of being involved in illicit tobacco trading;
13.4 Any possible breach by Mr. Van Loggerenberg of any law arising from the unlawful interception of information;
13.5 Whether there was any breach of any law or code of conduct by engaging in an intimate relationship with a taxpayer or its representative who was under investigation;
13.6 Whether there was any breach of any law or code of conduct by having intimate relationships with subordinate SARS employees who work within the same division as and/or report to Mr. Van Loggerenberg;
13.7 Whether there were conflicts of interests between Mr. Van Loggerenberg's role in the charity organization known as "Wachizungu" and his role as a senior SARS official;
13.8 Any engagement in corrupt activities;
13.9 Any possible breach of SARS policies, processes, codes or good governance;
13.10 Any act of impropriety in general or in terms of any law as well as any allegation that may come to light in the course of the investigation.
THE NEW COMMISSIONER
14 While we were in the midst of our investigation, the President of the Republic of South Africa, Mr. JG Zuma, appointed as new SARS Commissioner, Mr. Tom Moyane ("Commissioner Moyane"). The panel therefore was required to report to Commissioner Moyane. The panel met with Commissioner Moyane in his Brooklyn office on 17 October 2014 and confirmed its terms of reference with him. Commissioner Moyane expressed and offered his full support to the panel and its work. The panel also briefed him on its progress and undertook to make available this report on the 45th day (5 November 2014) since it commenced its investigation .
PROCEDURE AND METHODOLOGY
15 The panel was given the discretion to adopt rules and procedures designed to achieve a speedy but in-depth investigation into the allegations contained in the terms of reference. The panel took all reasonable steps to ensure that any persons appearing before it were protected from any undue influence, pressure, intimidation or coercion . In this spirit, where the panel received a request that would have exposed a witness or undermined the terms of reference, such request was declined.
16 A panel of inquiry such as the present one has no powers of compulsion. Nor does it have the power to issue subpoenas . Accordingly, invitations were issued in advance to persons that the panel considered would assist its investigation. Written submissions were also accepted from various persons, and depending on their relevance to the terms of reference, such submissions were taken into account. The panel also interviewed those whose names appeared in documents with which it had been furnished or arose from interviews with other participants, and who appeared to have information relevant to the investigation.
17 Ultimately, more than 25 persons were interviewed. Several of their submissions were of such a nature that the persons who made them require protection of their identities . It is for this reason that many aspects of the evidence are not attributed to specified people. Although several persons were invited to appear, others made the request to appear before the panel. As a result of time constraints, not everyone that made such requests was granted the opportunity to make oral submissions.
18 It is also important to state that the proceedings were not a trial nor a vehicle or mechanism for enquiring into Human Resource or labour related complaints within SARS. The task was simply to investigate rigorously and honestly the issues raised in the terms of reference with a view to uncover whether certain laws, policies and codes of conduct have been violated. However, in order to gain greater insights into the challenges facing SARS, submissions were not limited or confined. The individual persons had some liberty to make broad oral submissions as deemed necessary.
19 The process of conducting the interviews commenced with a clear objective of achieving deeper insights into the challenges facing SARS in respect of Mr. Van Loggerenberg and the so-called spy issues. Accordingly, the process was rigorous, and at times confrontational. This was so because at the beginning, the panel adopted an approach which allowed those interviewed to "honestly" tell their story. However, SARS, as we later found out, has, within its staff complement, a curious presence of former spies and/or former intelligence officers. This was compounded by the fact that both Mr. Van Loggerenberg and Ms. Walter are also part of the intelligence community. Quickly, the panel had to learn to separate fiction and fertile imagination from the facts and/or facts certain parties elected to remember.
20 The method of affording interviewees an environment in which they are at liberty to "tell their story" was adopted in order to ascertain what they were prepared to volunteer. In some cases, when you compare what they were prepared to volunteer and the evidence that emerged later, one is able to determine what was being withheld from the panel. As more information came to the fore through documents and other witnesses, the motives of different persons became clearer, including those that volunteered to make representations . The panel cautiously adopted a robust, but not hostile style of questioning .
21 During the investigation, the panel sought to confine itself to the terms of reference. Having sent an invitation to SARS staff to make submissions, the panel received several requests from various staff members and members of the public who sought to address it on every problem they had with SARS's investigations. Their issues ranged from complaints about preferential treatment of Mr. Van Loggerenberg, marginalization by SARS's senior management and some discrepancies in the manner in which resources are allocated to projects.
22 Unfortunately, and given the time constraints, it was practically impossible to meet each and every person that registered some grievance or some degree of discontent. However, the panel was not unsympathetic to these issues, but the some of them did not relate to the questions for which the investigation was convened.
23 The evidence was in some instances intensely detailed and voluminous. We were presented with volumes of documents and conducted numerous interviews, some of which were lengthy. We have no doubt that such information will become absolutely critical in a much more extensive inquiry whose time frames are not as limited.
24 We also experienced some degree of hostility and in some cases mere posturing from persons we interviewed. In our view, this was understandable. The levels of suspicion and cynicism were very high within the organisation since SARS management was perceived by some as having been hypnotized by Mr. Van Loggerenberg's perceived power and charm. While we make no comment about the veracity of these perceptions, the panel found that such a perception had compromised certain parts of the organisation . For understandable reasons, certain individuals viewed even this investigation with suspicion, carefully hinting at their ideas about what they thought it would find. Some of these individuals were clearly prepared to protect Mr. Van Loggerenberg at all costs, while others seemed to have adopted a hostile stance towards him as a result of what we viewed as organizational dynamics. The panel was mindful of these dynamics and sought to determine by way of evidence the real issues that were hidden in these submissions. The panel noted this environment as part of the challenges that result from certain omissions and commissions by SARS.
25 Some officials, one of whom had volunteered to be interviewed, simply made false representations to the panel. Having been intimately involved in the activities of the National Research Group ("the NRG") and its predecessors, they elected to omit such involvement. We withhold their names in this report simply because we were not able to call them back to answer to their conduct. First, it was clear to the panel that they could not be trusted to assist the investigation . Second, their falsehoods notwithstanding, the panel was able to obtain information from many other more truthful officials and sources. Accordingly, we considered most of their testimony as largely self-serving, false and irrelevant.
26 While the process of questioning was quite rigorous, the investigation did not adopt the format of cross-examination of those interviewed. The object was to get to the bottom of the real problem by means of rigorous engagement with those who appeared to make oral submissions.
27 We also sought to ensure that the process, while investigating Mr. Van Loggerenberg's conduct, did not in any way violate his constitutional rights. It is for this reason that we allowed Mr. Van Loggerenberg to appear with both his attorney and Senior Counsel. His Senior Counsel, Adv N Maritz SC was allowed to make comments on issues about which he felt his input was relevant. The panel also gave Mr. Van Loggerenberg two opportunities to make submissions. The first was to allow him the opportunity to provide the panel with his version of events as they related to the terms of reference. Once the panel gathered sufficient information, it afforded Mr. Van Loggerenberg another opportunity to respond to certain issues that had emerged from its investigation. Through this process the panel afforded him the opportunity to respond, it also gave the panel some insight into what Mr. Van Loggerenberg chose not to tell the panel during his first interview.
28 As we were to learn much later, we had to walk a tight rope in placing our trust in the truthfulness of witnesses whose trade is largely in the intelligence craft. There is no doubt that such officials are an essential component of any state. However, some among them choose the faking of sincerity, deception and intrigue as their preferred tools of trade. Accordingly, the panel had to be more careful and circumspect in its approach to the evidence that was presented to it.
29 As stated above, we were furnished with the report of the internal panel led by Mr. Kanyane, but did not have regard to the findings contained in that report. Instead, we deemed it absolutely imperative that we consider the evidence afresh in order to respect Mr. Van Loggerenberg's rights to a fair process. We considered it equally crucial that he be afforded ample opportunity to respond to all the allegations, including the ones that emerged as we interviewed various persons who appeared before the panel. We were also mindful that the onus to prove the strength of the allegations against him did not lie with him as he remained the subject of such accusations . Accordingly, our methodology was designed to ensure that Mr. Van Loggerenberg is not unduly burdened with mere allegations whose evidence was non-existent.
30 We must record that at our very first meeting with Mr. Van Loggerenberg, he requested that the panel should not use the names of the fellow SARS officials with whom he has had romantic relationships, Ms Lana Pinkham and Ms. Siobhan Wilson. He repeated this request when he was interviewed for the second time. He also asked that we do name the charity which he founded called Wachizungu in this report to the Commissioner. Both these requests were declined for various reasons including that no request for confidentiality had been made by the ladies themselves when they gave evidence to the panel. Moreover, the panel was of the view that to accede to Mr. Van Loggerenberg's request would have the effect of improperly influencing the work of the panel.
31 Surprisingly, on 2 November 2014, Mr Van Loggerenberg addressed an email to the panel and to SARS, repeating the request in respect of Wachizungu. A copy of the email is attached hereto as Annexure "SR2".
32 One of our terms of reference relates specifically to Wachizungu and we consider improper and audacious his attempt to tell the panel not to mention the name of an entity that the panel is specifically asked to consider. We are of the view that Mr. Van Loggerenberg fails in this regard to appreciate the significance of the integrity of the process.
33 Another incident occurred which almost caused concern to the panel. We were told by Ms. Walter when she appeared before the panel that Mr. Van Loggerenberg's counsel had advised her that he was confident that the panel would find in favour of Mr. Van Loggerenberg and asked Ms. Walter to stop her litigation against Mr. Van Loggerenberg . We viewed this allegation in the most serious light. We also considered it fair to put this allegation to Mr. Maritz SC, as our esteemed colleague . He assured the panel that there had been a misunderstanding in his communication with Ms. Walter during their attempt to settle their litigation.
34 Mr Maritz SC told the panel that he had simply indicated that he knew the members of the panel as advocates he respected and was confident that they would come to the correct outcome. As our colleague, we accepted his bona fides in this regard and put the matter to rest. We have no reason not to accept Mr. Maritz SC's explanation .
35 On 3 November 2014 Mr. Van Loggerenberg's attorney addressed a letter to Mr. lmraan Mahomed seeking to remind the panel of an undertaking it had made to Mr. Van Loggerenberg when he appeared before it for the second time. Unfortunately, the letter mischaracterises the undertaking as an undertaking not to make an adverse finding against Mr. Van Loggerenberg without first giving him an opportunity to respond thereto. A copy of the letter is attached hereto as "LETTER 1".
36 The panel made not such undertaking. To do so would have made a mockery of the process. The undertaking that was in fact made was that in the event that a new and adverse allegation was made against Mr. Van Loggerenberg, after he had made his last representations, the panel would afford him the opportunity to respond to such new allegation. On 4 November 2014 Mr. lmraan Mahomed, on behalf of the panel addressed a letter to Mr. Van Loggerenberg's attorneys clarifying this point and reminding them what the precise undertaking was. A copy of the letter is attached hereto as "LETTER 2".
THE PANELS' BROAD OBJECTIVES
37 The kernel of the problem facing SARS and perhaps other organs of state is whether its governance structures act within the law, in pursuance of the general objectives of the state, the vision and mandate of SARS and in the best interest of revenue collection and the country as a whole. The principle of legality is the foremost principle for how organs of state should do their business.
38 It was crucial therefore to make a careful assessment of what works within SARS, what is to be preserved and encouraged to grow and develop, as well as what is to be discarded . In that way, one could isolate the areas that are problematic and deal with them without destroying the stable aspects of this august and critical institution of the country.
39 Because SARS is a South African institution, it will naturally reflect some of the usual tensions within society. That is to be expected because all institutions of a given country will reflect most of society's dynamics and contradictions. The panel was acutely mindful of these issues and sought to approach the investigation as objectively as it could.
40 The panel was also mindful that any solution to be adopted must seek to improve rather than demoralize SARS. It must take it to a higher level and assist it in strengthening its governance structures. Depending on the facts, we were conscious that a sledge hammer approach may well solve one problem and create many more. Accordingly, we sought to isolate very carefully the problem as raised in the terms of reference and to subject each piece of evidence to the same scrutiny.
41 This approach was also made possible by the approach and attitude of both the Acting Commissioner, Mr. Pillay who appointed the panel, as well as the new Commissioner, Mr. Tom Moyane who was appointed when we had already commenced with the investigation. They both gave us the support we required in order to perform our mammoth task.
THE PROTAGONISTS IN THIS INVESTIGATION
42 At the heart of this investigation is the romantic relationship between Mr. Van Loggerenberg and Ms. Walter. Their respective backgrounds are relevant and perhaps instructive in regard to the present matter. We describe them accordingly :
42.1 1 Ms. Walter is an admitted attorney of the High Court of South Africa, a director and practicing attorney of Belinda Walter Attorneys Incorporated. Although there are reports that Ms. Walter dismissed allegations that she was a spy as "outlandish, ridiculous", she describes herself as having been an agent of the SSA, at least until she (as she contends) cut her formal ties with the SSA at the end of 2012. She admitted this role to the panel during an interview with her.
42.2 2 It is therefore common cause that while she acted as an attorney and in other capacities, she was also an agent of the SSA It is not within the scope of this investigation to deal with whether or not such a role as she played presented a conflict of interest for her and the clients in the tobacco industry who confided in her not knowing her role as an SSA agent.
42.3 Ms. Walter also revealed to the panel that she initiated the formation of FITA as part of the project of the SSA FITA's membership includes predominantly smaller non-compliant tobacco traders. The purpose for its establishment was to infiltrate these smaller traders to obtain intimate knowledge of their illegal activities. She became the first chairperson of FITA while also acting as attorney for some of the role players in the tobacco industry.
42.4 The other industry association is the Tobacco Institute of Southern Africa ("TISA"), which caters for bigger tobacco traders who claim to be tax compliant and without an inclination to illicit trading .
42.5 5 Since Ms. Walter is not the subject of this investigation, it is not relevant that her conduct as an attorney, ethical or otherwise, be dealt with in great detail. We do so only in so far as her own complaint and evidence point to acts of impropriety or poor judgment on the part of Mr. Van Loggerenberg. Where her evidence is irrelevant to the specific terms of reference, the panel disregarded it for purposes of determining Mr. Van Loggerenberg's conduct.
42.6 Mr. Van Loggerenberg, whose full names are Johannes Hendrikus Van Loggerenberg, is currently employed by SARS as its Group Executive: Projects, Evidence Management and Technical Support . He conceded to the accusation that he sometimes spells his own surname incorrectly, even in formal documents. Unlike those who raised this issue as improper, he told the panel that this happened when his name was misspelt when his email address was composed. The panel did not consider this point critical and for that reason resisted the temptation to challenge his reasons for deliberately misspelling his own surname. Mr. Van Loggerenberg describes himself as having been an undercover agent of the South African Police during apartheid South Africa . He told the panel that prior to joining SARS he was a member of what was known as the Republican Spy Programme. He also told the panel that although the Republican Spy Programme was used in the political context, he focused more on criminal investigations. According to Mr Van Loggerenberg his name appears nowhere in the records as a police official during the apartheid era. He continued in this role until the Republican Spy Programme was terminated after-which he joined a similar programme of the new democratic South Africa.
42.7 7 We were also told by another witness that the Republican Spy Programme or Republican Security was one of apartheid South Africa's most effective operations to infiltrate apartheid's political opponents, in the form of liberation movements. It recruited from universities and institutions of learning, targeting what apartheid security apparatus saw as bright-stars who could be easily trained to operate under-cover in unique political environments of liberation movements. For present purposes, nothing really turns on this point.
42.8 8 Mr. Van Loggerenberg is one of a few, at least as he testified, that were deployed to work in the area of organized crime, rather than the arena of politics .
42.9 9 It seems that these investigative skills are among the qualities that may have earned him a trusting relationship with some officials of the democratic South Africa .
42.10 When he was withdrawn from the "field" he was then seconded to the then NIA to assist on specific investigations. He did this until he was approached by the South African Secret Service ("SASS"). It was during his time at the SASS that he met Mr. Pillay, the current Deputy Commissioner of SARS.
42.11 Mr. Pillay introduced Mr. van Loggerenberg to then Commissioner of SARS, Mr. Pravin Gordhan ("Mr. Gordhan"), the current Minister of Cooperative Government and Traditional Affairs. Mr. Van Loggerenberg testified that Mr. Gordhan told him that he sought to develop intelligence capacity in SARS within the context of tax and customs. It suffices at this stage to state that this is how Mr. Van Loggerenberg joined SARS.
42.12 Mr. Van Loggerenberg has worked at SARS in various investigative capacities for the past sixteen years. It appears that during this period, he has distinguished himself as an effective investigator and operator. We were told that his work in this area speaks for itself. In fact, even those interviewed who were critical of his role as a senior manager acknowledge his superior investigative skills and work ethic. It is his role as a senior manager, his perceived abuse of the trust relationship he earned, his role in the operations of the NRG and his tendency to dabble in operations when he is supposed to provide strategic guidance to his division that became the subject of harsh criticism. We shall return to this point when we deal with the evidence that emerged.
42.13 Mr. Van Loggerenberg became central in, inter a/ia, the investigations into illicit tobacco trading. Armed with his obvious skills and the trust of top management of SARS he set systems in place to pursue his investigations into illicit trading.
42.14 It is the involvement of Mr. Van Loggerenberg in the illicit tobacco investigations and Ms. Walter's chairpersonship of FITA that resulted in their meeting and romance. We deal with the development of the romantic relationship between Mr. Van Loggerenberg and Ms. Walter where we consider the evidence.
THE ROOT OF SARS' CHALLENGES
43 Following the appointment of the panel and the finalization of administrative issues, on 14 September 2014 we held an introductory meeting with Mr. Pillay. The panel requested the meeting to officially advise Mr. Pillay of the approach the panel would take. We also asked Mr. Pillay to give the panel the historical context and background to the current impasse. During this meeting, Mr. Pillay explained how SARS sought to increase its capacity to investigate organized crime and illicit trading and the impact thereof on the tax and customs mandate of SARS . In this regard, M. Pillay explained the context as follows :
43.1 For some time, SARS had come under political pressure to deal with organized crime in relation to its customs and tax mandate. It responded by recruiting individuals who had the requisite intelligence background to address the concerns.
43.2 Mr. van Loggerenberg was recruited as part of this initiative. He moved rapidly up through the ranks to become a Group Executive: Projects, Evidence, Management and Technical Support. Mr. Pillay informed the panel that Mr. Van Loggerenberg was SARS' best investigator and an asset to the organisation.
43.3 During 2004-2005, SARS set up study groups to understand the illicit economy and how it functioned. SARS also began official interactions with the South African Police Services ("SAPS"), Military Defence and NIA. It had previously done something similar with the National Prosecuting Authority ("the NPA") which resulted in the creation of special tax units. The plan was that a unit would be housed within NIA, which dealt specifically with SARS' tax and customs intelligence related issues.
43.4 In line with this plan, SARS, through its highest office, approved the creation of a group which was known by different names, including the Tiger Group, Special Projects Unit, the NRG and later, the High Risk Investigation Unit. As explained in greater detail below, the unit was staffed with members who came primarily from the intelligence structures with the requisite skills to conduct surveillance, investigate and monitor those involved in the illicit economy.
43.5 5 However, SARS and NIA were unable to formalize the creation of a unit within NIA to deal with SARS's specific issues.
43.6 SARS therefore found itself in the position that it had a unit which had capabilities beyond its legal mandate. This unit was ultimately headed by Mr. Van Loggerenberg .
44 Mr. Pillay provided the panel with two sets of submissions. Of particular relevance is the supplementary submission which deals with issues related to the NRG, its resourcing and its funding. The supplementary submission is attached as Annexure "SR3."
45 We must state that we fully understand that SARS sought to confront head-on the effects of organised crime on its revenue and customs duties. As will appear more fully below, for some time now, SARS has been faced with the growth of organized crime in the tax and customs arenas. Since the late 1990's SARS also sought to increase its efforts in dealing with corruption within its ranks. This resolve and commitment is recorded in various Budget Speeches of Ministers of Finance. Several documents and reports of SARS which were brought to our attention bear testimony to this commitment. The real question however, is whether SARS, in its current form, has the statutory powers to investigate organised crime. In other words, what is the enabling statute?
46 We shall deal hereunder with the impact of this noble desire to combat organized crime and how the practice of recruiting former intelligence operatives may have had a negative impact on the very nature of this civilian organ of state and how it functions and manages the enforcement aspect of its mandate. We shall also demonstrate how the alleged lack of cooperation from other security agencies may have driven SARS to dabble in functions for which it lacked statutory authorization.
47 The recruitment of former intelligence officers within its ranks was a double- edged sword for SARS. It afforded SARS the opportunity to make great strides in its own investigations. These former operatives possessed investigative skills that SARS required to respond to the political calls to deal with organized crime and illicit trade. However, the prevalence of these types of employees within a civilian organ of state may present various difficulties. With all their requisite and usually helpful skills, they can alter the very nature, culture and operation of an otherwise civilian structure . It may have the effect of turning a civilian structure into a command and control theatre of intrigue and subterfuge. Most of the senior managers interviewed by the panel fully concurred with this sentiment.
48 In the book entitled "Why Intelligence Fails" Robert Jarvis in the Chapter on "The Politics and Psychology of Intelligence and Intelligence Reform" refers to a statement made by former US President Lyndon Johnson, as he described intelligence officers rather colourfully as follows:
"Let me tell you about these intelligence guys. When I was growing up in Texas, we had a cow named Bessie. I'd go out early and milk her. I'd get her in the stanchion, seat myself and squeeze out a pail of fresh milk. One day I'd worked hard and gotten a full pail of milk, but I wasn't paying attention, and old Bessie swung her shit-smeared tail through the bucket of milk. Now, you know what these intelligence guys do. You work hard and get a good program or policy going, and they swing a shit-smeared tail through it."
49 Indeed the above statement is not true of lawful, ethical and disciplined intelligence officers. The recruitment of various former intelligence operatives (both those who worked under apartheid and those who worked under the new democratic dispensation) seems to have been necessitated by the desire to equip SARS with the needed investigative skills in order to meet its mandate. While pursuing a noble idea, the presence of such operatives has at times resulted in a lack of transparency and a culture of working outside of the policies and principles of SARS.
50 Obviously, this is in contrast to the many disciplined and hard-working intelligence officers found in the statutorily authorized agencies of the state. However, there are certain circumstances and conditions, as the evidence we gathered will show, where certain environments become a breeding ground for rogue elements and their ever-changing nefarious motives.
51 There is no doubt that the political principals that called for an intensified programme to deal with organized crime did this in the interests of the South African state. We found no evidence to the contrary. The evidence reveals good intentions, implemented in reckless haste.
52 In many respects SARS remains, in our view, an integral part of South Africa's economic and political life. It remains one of post-apartheid South Africa's success stories. By and large, the majority of its staff remain committed to the statutory mandate of SARS. We interviewed many such employees, who serve SARS selflessly and without any hint of narrow selfish interests. It is important to state that despite all the evidence of poor judgment that we have encountered in our investigation, including rogue conduct by individuals and acts of illegality, SARS as an institution remains an efficient, hardworking and able revenue service.
53 The problem, in our view, was a tiny ugly spot that lay deep in the belly of this august institution. Once rid of this, SARS remains the cornerstone of South Africa's economy. This ugly spot is, in our view, the unit that was established without the requisite legislative framework, and operated in isolation and outside the official premises of SARS.
THE EMERGENCE OF THE NAT NAL RESEARCH GROUP
54 The existence of the NRG was not volunteered to the panel until it was revealed in the media. The panel independently found sources that had been part of this unit since its inception. To the extent that the existence of this unit has been at the centre of the complaints against Mr. Van Loggerenberg, we investigated its origins. We also investigated its origins simply because our terms of reference included the investigation of any other matter that we deemed deserving of such investigation. As the evidence revealed, the unit, whose name curiously coincides with that of a secret research unit in the film industry in the United States of America, used other names before it was named the NRG.
55 On 12 February 2007 the then Commissioner of SARS, Mr. Gordhan addressed a memorandum to the then Minister of Finance, Mr. Trevor Manuel, seeking approval for funding of intelligence capability within NIA in support of SARS. A copy of this memorandum is attached hereto as Annexure "SR4".
56 It is clear ex facie this memorandum that SARS sought to establish within the NIA a unit for the collection of tactical intelligence, which implies inter alia "penetrating and intercepting" organised criminal syndicates. At this stage, SARS correctly recognized that it had no statutory authority to collect intelligence. It seems from the memorandum that Mr. Gordhan had an undertaking from NIA that it was willing to accommodate such a unit. It follows, even on SARS's own version that unless NIA cooperated, the establishment of such a unit would be an illegality.
57 Shortly after the panel was appointed and commenced its work, the media reports escalated and alleged the existence of a covert unit that had been operating at SARS. By this time, we had already interviewed some SARS officials, including Mr. Van Loggerenberg. It must be stated that the existence of such a unit in any form was not specifically part of the terms of reference. However, the terms of reference extend, in our view, to the consideration of the existence and operations of a covert unit, to the extent that had we not considered such issues once they became apparent, we would have failed in our obligation to fully respond to our mandate.
58 We were emphatically told, at least until reports began to emerge in the media, that SARS had never had a covert unit or anything resembling such unit. What we were told, though, is that SARS had sought to increase its capacity to investigate organised crime. At this stage, the panel laboured under the impression, as it was initially told, that such investigation was indeed related to SARS's revenue collection and customs statutory duties, and did not include the existence of any covert or undercover unit whatsoever.
59 We were later to find evidence that a unit whose features were that of a covert one, did indeed exist and that it was led in the main by recruits from the intelligence community whose existence was not known by the majority of SARS's officials, including some in management positions. In this regard, the evidence revealed a narrative rarely exposed to the public about our revenue service. It exposed minority activity of idiosyncratic and egocentric personalities, deception, intrigue and plain falsity. It was, as the evidence will show, a product of an ill-conceived idea to deal with a real challenge of organised crime.
60 We call the above "minority activity" because by and large the majority of SARS officials work hard to ensure that the statutory mandate of SARS is executed with due diligence and honour. Many of those we interviewed lamented such activity as it undermined their daily efforts to meet SARS's constitutional and legislative mandate. This rather unfortunate activity took place without the knowledge of the majority of these hard-working public servants. This "minority activity" notwithstanding, the hard-working officials have kept SARS as one of the most efficient and effective organs of state in South Africa.
61 We express our disappointment that the existence of this unit, whose name or names we shall return to later, was not volunteered to us in the early stages of the investigation. Even when the panel later confirmed its existence through other sources, some of the relevant witnesses within SARS management, presented what seemed like a rehearsed narrative, whose object may have been, in our view. first to mislead the panel, and second, to present the existence of such unit in the positive and lawful light. This narrative, in our view, ignored one simple legality imperative - that SARS cannot and should not engage in the intelligence or investigative functions which reside in other agencies of the state. We obtained evidence that SARS had originally correctly recognised that such a unit should indeed reside within the SSA. (or the then NIA)
62 The predecessor to the NRG was a unit called Special Projects Unit. This unit was established after SARS sought to improve its intelligence capacity. In alphabetical order, the persons who became members of the Special Projects Unit were the following:
62.1.1 Bothma, Fannie
62.1.2 De Bod, Pieter;
62.1.3 De Waal, Jappie;
62.1.4 Fourie, Chari;
62.1.5 Gunn, Gilbert;
62.1.6 Hector, Keith;
62.1.7 Jute, Gerrit;
62.1.8 8 Kotze, Eddie;
62.1.9 Kwela, Eric;
62.1.10 Leeuw, ltumeleng;
62.1.11 Le Roux, Dannie;
62.1.12 Lombaard, Helgard;
62.1.13 Mabaso, Timothy ;
62.1.14 Mphahlele, Kenneth;
62.1.15 Muller, Johannes;
62.1.16 Nkomo, Sipho;
62.1.17 Nyaphudi, Dillo;
62.1.18 Peega, Mike;
62.1.19 Pitsi, Nkele;
62.1.20 Van Niekerk, Frans;
62.1.21 Van Wout, Anton;
62.1.22 Wilson, Siobhan;
63 The unit essentially functioned as a covert unit. Its members, some of whom had been regular employees of SARS were requested to leave and operate from home until the unit was "disbanded". This disbanding, simply instructed certain members to either resign or return to their regular SARS positions.
64 Six of the members of the NRG were retained in a new outfit which was then called the High Risk Investigation Unit. The members that returned to their regular positions at SARS labored under the impression that the NRG had been totally disbanded. They only became aware through their colleagues who were still remaining that there had been a name change, but the unit continued to exist.
65 Some of the witnesses among the members of the High Risk Investigation Unit stated that they had been involved in what seemed like covert operations. Some had been involved in the electronic tracing of vehicles and surveillance of individuals. In this regard, evidence was presented suggesting that certain electronic devices were indeed recently returned to SARS.
66 Some of these members had been asked by one of their handlers to pose as drivers to political figures like Mr. Julius Malema and Mr. Fikile Mbalula. They did not know how this task related their tax functions, but performed them as they had been told never to ask questions. It is not clear to what end projects of this nature were performed. It is also not clear whether SARS management was even aware of these activities.
67 Three of the witnesses confirmed that during the operations, they had been asked to use fake SARS cards, bearing false names. We attach hereto as Annexure "SR S(a) and (b)" a copies of a fake card bearing a false name given to the panel by one of the members who was involved in the NRG.
68 The NRG had a budget and was initially led by an individual known as Skollie, who later left SARS. The unit appears to have had carte blanche to regulate its activities. The presence of individuals with intelligence backgrounds and skills played a significant part of the operation of the group.
69 The covert unit operated outside of the traditional SARS environment, printed fake SARS cards, bugged, traced vehicles, conducted surveillance of individuals and disguised themselves as drivers to certain political figures. This was regarded as unlawful and outside the SARS mandate by some members of the unit. In fact, Mr. Pillay categorically denied that such unlawful conduct was authorized by SARA-top management.
70 Members of this covert investigative unit provided us with substantial and useful information to appreciate the length and breadth of SARS's involvement in the investigation of organised crime activities for purposes of tax collection. One important piece of information provided to us was a list of projects dealt with by this unit over a period of four years from April 2010 to July 2014 . The following are some of the organised crime projects dealt with by NRG/HRIU:
70.1 The identification of the true identity of Russell Knight, which resulted in the investigation of Radovan Krejcir, the Czech fugitive who is currently standing trial for multiple offences in South Africa. The unit also obtained background information of Krejcir's contact, Ivan and lvanova Savov. The SARS project on Krejcir is ongoing;
70.2 The investigation code-named "Carvoux", which involved an extensive interviewing of people involved in a scam comprising of private individuals and government officials attached to the office of the Deeds Registry and office of the Registrar of Companies with an intention to defraud SARS;
70.3 Operations code-named "Honeybadger" and "Eagle Eye" into the trade and manufacturing of illicit tobacco. This investigation included interviewing of potential witnesses and the scoping of premises used for manufacturing of cigarettes;
70.4 Operation "Goldfinger" involves the investigation of Gerrit Bezuidenhout, who was suspected of gold smelting at his premises in Kempton Park. This investigation led to the search and seizure of gold smelting equipment; and
70.5 Operation "Flintstone" was about the interview of witnesses in the Hennie Delport/Phoepus Apollo matter. This case remains one of the biggest cases to have been handled by SARS.
71 The unit's method of dealing with organised crime was covert in nature, hence the use of code-names. This is because of the dangers associated with hunting down people who do not play by the rules. It is generally known and accepted that SARS faces a steep challenge against organised crime syndicates because of its limited capacity to operate covertly against a well-resourced opponent. Nothing is more elucidating of this challenge than the following extensive excerpt from the Mail & Guardian article of 20 March 2014 titled "Big Tobacco in bed with SA law enforcement agencies" as it captures the essence of the challenge which SARS is facing and the nature of the beast it sought to confront:
"An amaBhungane investigation into the RS-billion-a-year illicit tobacco industry can reveal how two major multinational companies used their considerable resources to influence
South African state security agencies to protect their commercial interests.
In one case, controversial African conglomerate Lonrho was able to sidetrack a criminal investigation of its logistics subsidiary, Rollex, which in 2010 had been caught smuggl ing truckloads of illegal cigarettes across the border from Zimbabwe.
The Lonrho example also calls into question the judgment and actions of former State Security Agency (SSA) director Gibson Njenje, who earlier this month launched a private intelligence company.
In another case, the dominant South African cigarette producer, British American Tobacco (BAT), appears to have parlayed its support for law enforcement into preferential access to state security structures - and, with that, the alleged capacity to spy on its competitors.
The evidence shows how vulnerable the security agencies are to manipulation by big private players with deep pockets, who do so often under the guise of "support" for official projects.
Case one: Lonrho
Two stories have their genesis in a police bust, on April 27 2010, of three trucks transporti ng illegal cigarettes. The trucks belonged to Rollex, a South African transport company, 51% of which is owned by Lonrho.
On that day in April, the trucks were returning "empty" from Zimbabwe. But, in fact, they were carrying a more lucrative load - cases of contraband cigarettes that were undeclared and untaxed and, therefore, very profitable.
Cheapies
The economic logic of cigarette smuggling is relentless. In South Africa, as elsewhere, steep sin taxes comprise the major part of the cost of a pack of cigarettes. Find a way of avoiding paying those duties and the profits are on a par with narcotics. But the risks are low: being caught smuggling earns little more than a fine.
Combine this with a semi-lawless neighbour, Zimbabwe, which produces tobacco, and the economics have propelled a succession of small players to carve a niche in "cheapies" - low-cost brands, often backed by creative ways of avoiding the prying attentions of the South African Revenue Service (Sars).
Today, the industry body representing the established cigarette brands, the Tobacco Institute of South Africa (Tisa), estimates that the illicit trade represents about 30% of the market.
The big players, particularly BAT, have hit back by pursuing an aggressive campaign to support action against the traffickers, including by funding Tisa's favoured private investigations firm, Forensic Security Services (FSS), to the tune of about RSO-million a year.
That campaign includes a seat on the Illicit Tobacco Task Team, which includes representatives from BAT, the Hawks, crime intelligence, the SSA and the National Prosecuting Authority (NPA), but not Sars. Much of the focus is on the small players, who are blamed for most of the contraband activity.
But, controversially, the structure gives BAT access to state intelligence and the ability to influence who the state targets among its direct competitors.
Rollex and Delta
In 2010, the focus of the task team was on a cigarette manufacturing company, Delta Tobacco, one of several companies believed to be outlets for the big Zimbabwe tobacco and commodity barons, such as John Bredenkamp and Billy Rautenbach.
During that year, intelligence reports seen by AmaBhungane suggested that Rollex - and specifically De Robillard - was linking up with Delta to create a one-stop cigarette operation including growers, manufacturers and distributors.
Banking records suggested that Rollex and related companies were doing millions of rands of off-the-books transactions, including bartering South African liquor for Zimbabwean cigarettes. At that time, Sars suspected that the three trucks and their cargo of cigarettes were just the tip of a massive scam that could result in crippling customs and excise penalties. Meanwhile, BAT lodged formal criminal complaints against Delta and Rollex.
Lonrho strikes back
This time, however, the task team was dealing, in Rollex, with an entity that had its own multinational backing and intelligence access through its parent company, Lonrho. Lonrho did not appear to notice the truck and tobacco seizures in April or the possible implications.
In May 2010, Lonrho bought the 49% of Rollex it did not already own and retained De Robillard to continue to run what was ostensibly one of Lonrho's most profitable divisions. Lonrho also appeared to engage a secret weapon - Ferdie Fryer, then the acting head of commercial intelligence for the SSA.
Several meetings were held between Fryer and the legal counsel to Lonrho, Michael Bennett, at which it was apparently agreed to treat Lonrho as an innocent victim of De Robillard's activities, despite the fact that the investigation was at an early stage and there was no clear evidence to suggest Lonrho or its directors knew of the activities at Rollex.
At a meeting in December that year, Fryer said that he was speaking on behalf of Njenje, as the head of the SSA domestic service, and that he was "mandated to negotiate" a deal with Lonrho. Accordi ng to notes of the meeting, Fryer told Bennett that "the South African government cannot afford to burn Lonrho on its investment" and agreement was reached that Lonrho and its reputation were to be protected "at all costs".
'Sidelining Sars'
About the same time, Njenje called an extraordinary meeting of the heads of the crime-fighting services. Those present included the Asset Forfeiture Unit's Willie Hofmeyr, Hawks commander Anwa Dramat, Financial Intelligence Centre boss Murray Michell and Sars deputy commissioner Ivan Pillay. According to a source familiar with the contents of the meeting, Njenje introduced a report, presented by Fryer, which claimed to have evidence of corruption by senior members of Sars.
But Sars claimed it had recordings that showed that the allegations were engineered by a group of individuals, including a manager of Rollex, who had been targeted by Sars for their involvement in tobacco smuggling. Sars said that a key contact of the individuals behind the claims was Graham Minnaar, a former SSA employee and a long-time source for Fryer. With the recordings and the questions about Minnaar's role, Sars was able to counter the allegations and Njenje's and Fryer's presentation was cut short.
The mysterious Minnaar
AmaBhungane reported in 2011 how Minnaar played the role of agent provocateur in an alleged attempt by former Malawian vice-president Cassim Chilumpha to arrange the assassination of the country's president, Bingu wa Mutharika, in 2006. Minnaar later was revealed as a state witness in the case against Chilumpha.
Minnaar's role as a former member of the SSA was revealed at the Ginwala inquiry into former national director of public prosecutions Vusi Pikoli, where it emerged he had accompanied Malawi's chief prosecutor to a meeting with Pikoli to seek official help in gathering evidence against Chilumpha.
Minnaar this week denied he was party to the 2010 allegations against Sars. "I was not involved in that investigation ... Anyone suggesting [I was] either received false information or is busy with some sort of agenda. "I'm a political risk consultant. Some of my clients trade in the tobacco industry ... The only fleeting connection that I have to that matter is a former colleague of mine [who] played a role ... Ferdi Fryer ... He asked my opinion on some matters because I used to work with him on some issues when I was still engaged with the SSA, and it was not in any way substantive."
Fryer and Lonrho
Neither Fryer nor the SSA appeared daunted by the rebuff from Sars, though Fryer resigned officially from the SSA at the end of February. But he continued to "represent" the SSA in negotiations with Lonrho after his resignation.
On April 11 2011, Fryer made an extraordinary presentation to a project team that included another SSA manager, a senior prosecutor, advocate Johan van Heerden and senior police officers. Accordi ng to minutes of the meeting, Fryer disclosed that a co-operation agreement had been reached with Lonrho.
Fryer explained the rationale behind the decision for the co operation, especially as a result of Lonrho's foreign investment into South Africa and the negative impact of it suffering as a result of the rogue elements within its South African subsidiary. Fryer also told the meeting that Sars was uncooperative and compromised, and therefore should be excluded. Fryer confirmed the commitment to Lonrho to assist with protecting its assets and reputation.
Thereafter, the SSA and the NPA shared with Lonrho its very detailed intelligence report on Rollex and related entities, including confidential eyewitness, whistle-blower evidence.
A delayed raid
Sars, unaware of the "co-operation agreement" with Lonrho, was pressing for a raid on Rollex. It is understood that both Njenje and Van Heerden wrote to Sars urging a postponement, arguing that a raid would derail a sensitive investigation. Meanwhile, information from the confidential witness affidavit that had been provided to Lonrho was allegedly used by Lonrho to confront De Robillard, tipping him off.
When the raid on Rollex eventually happened sometime around September 2011, it was in terms of a search-and seizure application that had been drafted for the police by a private advocate representing Lonrho. Very little was found, notably because there had been a robbery about two weeks before during which the company's computers were stolen. The NPA, however, denied the allegation that a private advocate for Lonrho had drawn up the warrant, saying "it was based on an affidavit by the SAPS investigating officer, [and] drawn up by NPA employees".
It appears the criminal cases to be made against Rollex and De Robillard are moribund. The NPA said it "cannot comment" on the status of the investigation against Rollex and de Robillard.
Case Two: British American Tobacco
In November 2012, Zimbabwean President Robert Mugabe launched a characteristically direct broadside at an adversary: this time it was at British American Tobacco. Accusi ng it of using dirty tricks against its Zimbabwean competitors, Mugabe warned: "If this is what you are doing in order to kill competition and you do it in a bad way, somebody will answer for it."
Few people took much notice, perhaps because Mugabe was defending one local cigarette company in particular, Savanna, which is controlled by his nephew by marriage, Adam Molai. But BAT denied the charges levelled against the company in Zimbabwe.
A spokesperson said BAT "strongly denies any involvement in industrial espionage or illegal activity that may be linked to other local tobacco manufacturers". Yet documents obtained by amaBhungane show that, about a year before, in about December 2011, Forensic Security Services (FSS) had recruited a controversy-dogged former South African National Defence Force recce, Michael Peega. After leaving the military, Peega worked undercover for Sars, but was fired after he was implicated in rhino poaching.
The documents suggest that FSS sent Peega to Zimbabwe to set up a base and deploy surveillance or tracking equipment. Affidavits signed by Peega state: "I am an adult male who in a consultancy capacity renders a service to the Tobacco Institute of South Africa, aimed at assisting law enforcement agencies to curb the trade in illicit cigarettes."
Peega was also suspected of being the source of a document hawked around by Julius Malema in February 2010, which accused Sars of targeting allies of President Jacob Zuma (among whom Malema then counted himself) using the covert Sars unit Peega was once a member of.
By December 2011, Peega was working for FSS and the affidavits were apparently required to account for cash that had been given to him to set himself up in Zimbabwe.
FSS provides investigative services to Tisa and is led by a tough and shrewd former apartheid-era intelligence officer, Stephen Botha.
Fast forward to December 2013 and Peega has emerged as one of a number of BAT agents paid in a roundabout way: direct deposits are made into untraceable foreign currency cards by BAT's global head office in London.
Tisa is said to spend roughly RSO-million a year on services provided by FSS, though neither it nor BAT would confirm the figure. BAT and FSS representatives, through Tisa, also sit on the multi-agency Illicit Tobacco Task Team, where critics say they get to drive the law enforcement agenda.
For instance, according to a source familiar with the task team's work, a senior member of BAT United Kingdom, Allen Evans, has presented a detailed project proposal to investigate Gold Leaf Tobacco Corporation, always regarded as BAT's biggest threat in South Africa.
BAT estimates that the illicit trade in cigarettes deprived the South African government and the Southern African Customs Union of a staggering RSO-billion last year. "Any information handed over to law enforcement agencies, when so requested, is done so primarily on matters related to suspected acts of illicit trade in cigarettes," the company said in response to amaBhu-ngane questions. "BAT (SA) remains committed to compliance with the country's laws and supports free and legitimate competition."
But according to information from former BAT agents, the interpenetration of state and private intelligence has gone further and has led to the infiltration of BAT's smaller competitors.
AmaBhungane has learned that when the small players set up their own industry body, the Free-trade Independent Tobacco Association (Fita), in mid-2012, not only was the organisation riddled with agents but the SSA also bugged its first meeting using equipment and technical experts provided by FSS.
Some subsequent meetings were also monitored and, in some cases, people employed by competitors of BAT were secretly paid to report to it. At least six individuals were supplied with Travelex foreign currency cards, which allowed BAT UK to transfer cash to these agents in a way that was not subject to the restrictions of foreign exchange and money laundering regulations, either in the UK or South Africa. It appears this may also contravene South African and UK tax legislation..."
72 This investigation report should therefore be read and seen in the light of the above excerpt. It is our view that the romantic relationship between Mr. Van Loggerenberg and Ms. Walter, their fall-out, the media storm that followed and the consequent pounding of SARS's reputation are all the results of a spy- game foisted on SARS by the world of organised crime co-mingled with rogue intelligence agents . Ironically, it is the subject of this investigation himself who, in discussing his sensitive work with his lover, devoid of forethought, said:
"Ferdi on his own together with Graham have caused this country so much damage. If we were able to have bust Kajee, Ayabatwa and Lonhro when the chance was there, and then Carnilinx and Simon, imagine where we would have been now. What's going on now is actually a result of Gibs, Ferdi, Graham and BAT UK's own shenanigans. And then in their wake followed Hennie, Chris, Casper and Ash. From a casual point of view we would've nailed all these guys including Delport long ago if they didn't interfere and play games." 1
73 This panel recognized very early in the investigation that there would be no angels on a mere say so, that the truth would have to be ferreted and, if found, would often be found somewhere between two or more competing versions, and that it was going to be a challenge to determine what we have been asked to determine in terms of our terms of reference.
74 Since the commencement of this investigation, the question of whether SARS had the wherewithal to intercept taxpayers' communication or not, and whether it in fact did so or not, was raised by us with every SARS senior manager interviewed. Before the Sunday Times article of 12 October 2014 by journalists Piet Rampedi, Mzilikazi wa Afrika, Stephan Hofstatter and Malcolm Rees titled
1 Jvl's WhatsApp message to Ms. Walter on 26 January 2014
"SARS bugged Zuma", the answer to that question oscillated between uncertainty and denial. After that article, the existence of a covert unit first called the Special Projects Unit ("SPU"), which changed its name to NRG, and then again changed to HRIU, was acknowledged by those who knew about it, including Mr. Van Loggerenberg, Mr Pillay and some of its operatives . When asked, one of those who were aware of the existence of the NRG indicated that it was unlikely that any of its members would have told this panel of its existence because of the manner in which it operated, in other words-it was a covert unit which operated outside of the traditional SARS framework and physical environment.
THE PURPOSE BEHIND THE FORMATION OF THE NRG
75 The history of the NRG was confirmed by Mr. Van Loggerenberg, Mr Pillay and the unit's operatives who were interviewed. In particular, Mr. Van Loggerenberg and Mr. Pillay told the panel about the existence of the unit during their second sessions with the panel and their perspective is as follows:
75.1 They confirmed that the unit was started in approximately 2007 with the view to combat organised crime through the deployment of intelligence capacity in addition to normal SARS operations. The initiative was supported and approved of by the relevant Ministers and Commissioner at the time. The unit was intended to be housed in and managed by NIA in an effort at co-operation between NIA and SARS. Such co-operation is in fact encouraged by the Constitution of the Republic of South Africa;
75.2 Negotiations were commenced between SARS and NIA but did not progress to a point where the plan became a reality. As fate would have it, when the negotiations failed SARS had already started gathering the required personnel experienced in intelligence work and had already started conducting limited intelligence work against organised crime. It is generally accepted that the unit never progressed to conduct anything more than the limited intelligence it did when it started;
75.3 This limited intelligence work entailed desk-top research and physical surveillance and tracking (following), with the use of borrowed vehicle tracking devices in two or three cases in its entire life-span. It is also generally accepted that the efforts of this intelligence team had impressive returns against organised crime throughout most of its existence. Through its work, the unit has been able to contribute immensely to the creation of the best revenue service in the continent and one of the best in the world;
75.4 The unit started with between 23 and 26 members who came from various backgrounds including tax, intelligence and law enforcement. The unit was called the NRG and was led by an operative referred to as "Skollie" (whose real name is Andries Janse Van Rensberg) under the management and guidance of Mr Pillay. During that time, its operational structure was in the form of cells or sub-units where each cell was self contained and independent from other cells save during general operational meetings which happened mostly in a place called the Brooklyn Guest House; and
75.5 Members worked from home and were not known by the general SARS staff. In fact, one of the unit's "rules of play" was that the unit was not to be known by other SARS employees. These "rules of play" were formalised after Skollie had left the unit in 2009 and Mr. Van Loggerenberg had taken over the leadership of the unit. In its original form, the unit was "disbanded" in 2009 and only six were retained to continue operations under the new name, High Risk Investigation Unit.
75.6 It is important to state that Mr. Van Loggerenberg denied any knowledge of unlawful activity of the unit. In fact, he told the panel that when he took over, he made sure that the unit operated within the framework of the law governing SARS.
76 The six members who were retained after the disbandment of the NRG in 2009 were mostly from the intelligence and law enforcement backgrounds . They remained in operation, unknown and unheard of, until they were exposed through the Sunday Times on 12 October 2014 following the romantic fall-out between Mr. Van Loggerenberg and Ms Walter.
77 At the time, Mr. Van Loggerenberg reported to Mr Gene Ravele. However, Mr. Ravele indicated to this panel that he was kept in the dark until very recently about the existence of the NRG and that he was only begrudgingly provided with scant information by Ms. Langa at the instruction of Mr. Van Loggerenberg after pestering both for such information as people who reported to him. A copy of a spreadsheet similar to the one alleged to have been provided to Mr Ravele after pestering Ms. Langa and Mr. Van Loggerenberg is attached hereto as Annexure "SR 6".
78 For the sake of fairness to Mr. Van Loggerenberg, we do not consider the contentions that he failed to provide proper reports. We do so simply because this further allegation was not put to Mr. Van Loggerenberg as he had already appeared twice before the panel.
79 At this point, it must be pointed out that, with the exception of Mr Ravele, none of the senior managers mentioned in this report who knew of the existence of the NRG/HRIU had voluntarily provided us with information relating to the unit until the story of the unit was published in the Sunday Times of 12 October 2014.
80 Notably, all of those we interviewed, who knew about the NRG/HRIU and/or who were part of it remained adamant that the unit did not have the capacity to intercept communication. In fact, all the unit's operatives, both in respect of the old NRG and the new HRIU, either asserted that the unit did not have equipment to carry-out electronic surveillance and/or interception of communication or were uncertain about whether such surveillance and/or interception of communication had occurred or not. The supplementary representations made by Mr. Pillay already set out the items that were purchased for the use of the NRG.
81 The uncertainty arises because the unit, at least in the past when it was still led by "Skollie" operated in cells or sub-units. The structure was such that each cell did not know what the other cells were doing. Those interviewed accepted that they did not know what other cells were doing and therefore could not rule out any unlawful conduct of the cells in which they were not involved. One individual who was later absorbed back into SARS indicated that he was he found no evidence that any of the information he gathered had found its way into existing SARS investigations. He therefore was confused about what the real purpose of the covert intelligence operations were.
82 However, as a general rule, it was accepted that the unit did not have the required equipment to carry out such electronic surveillance or interceptions.
83 The lingering uncertainty around this question of illegal interception is fortified by Mr. Van Loggerenberg's communication with Ms Walter during their romantic relationship. To confirm some of the communication quoted by the Sunday Times:
"We are running plenty lines. More lines mean more data to sift."
"their lines are super-hot"
"watcher and listener ladies [who] don't waste time to draft reports for me on personal stuff'
84 This damning confirmation of the existence of interception capacity by the unit is non-chalantly dismissed by Mr. Van Loggerenberg as statements made in jest or in deceit of a lover with whom he alleges to have had a "loving and trusting"2 relationship.
85 Moreover, Ms. Walter herself indicated to this panel that she had been shown evidence by Mr Van Loggerenberg of how he was able to intercept and monitor movements and communications of various individuals, on his laptop. We were however, not provided with direct evidence of this and are therefore unable to accept this evidence as incontrovertible.
86 However, there is, in our view, sufficient evidence to justify a more extensive investigation into the question of the extent of interception capacity within the NRG.
THE NATIONAL STRATEGIC INTELLIGENCE ACT AND THE LIMITATIONS ON COVERT ACTIVITY
87 The provisions of the National Strategic Intelligence Act 39 of 1994 regulates the functioning of intelligence structures in South Africa and prohibits the conducting of covert intelligence gathering by structures other than the National Defence Force, the SAPS, or the State Security Agency.
88 Any assessment of the NRG must therefore be made while bearing in mind that SARS' mandate is to ensure the efficient and effective administration of the revenue collecting system of the Republic and the control over the import and export of certain goods. In doing so, SARS is required to enforce and implement the relevant tax legislation.
89 Of importance, SARS is not responsible for crime intelligence or covert intelligence gathering. Therefore, the structure of our legal system envisages that entities such as SARS, the SAPS and the SSA will work together to address joint areas of concern. Any investigative activities conducted by SARS officials must therefore be done in this context .
FURTHER EVIDENCE CONSIDERED
Mr Van Loggerenberg's Evidence
On 22 September 2014 the panel interviewed Mr. Van Loggerenberg . We shall refer to this interview as the "first session". As explained above, during the first session, Mr. Van Loggerenberg was accompanied by his attorney Mr. Wim Cilliers and Counsel Mr. Maritz SC. All parties were satisfied with the process and undertook to cooperate fully . It was agreed that this was the first session and Mr. Van Loggerenberg was afforded ample opportunity to make his representations in respect of the complaint against him as recorded in Ms. Walter's complaint as well as our terms of reference. His evidence is contained in the initial representations he made to the panel on 22 September 2014 . It is also contained in the affidavit that he submitted to the panel just before his second interview, a copy of which is attached hereto as Annexure "SR7" . His evidence as presented in both sessions may be summarized as follows :
89.1 Before he joined SARS he was in the Police Service as part of the Republican Spy Programme;
89.2 He was involved in the investigation of organised crime and operated mainly in the area of Durban;
89.3 He was also involved in the projects in the continents of Europe and South America;
89.4 He met Mr. Pillay while he was doing work in the South African Secret Service;
89.5 Mr. Pillay introduced him to Mr. Gordhan who sought to increase SARS's investigative and intelligence capacity;
89.6 Mr. Van Loggerenberg was concerned about being recruited to work for SARS as he knew nothing about tax, having worked only as an intelligence operative;
89.7 He was primarily involved in setting up new components for units that were investigative in nature;
89.8 Although Mr. Van Loggerenberg only conceded to having had two romantic relationships within SARS, when the panel confronted him with the name of another SARS official he had been romantically involved with, he conceded. Accordingly, it is common cause that he has had romantic relations with Ms. Lana Pinkham, who was very cooperative with the panel, Ms. Siobhan Wilson and Ms. Talita Snyckers. Both Ms. Pinkham and Ms. Wilson conceded to having been romantically involved with Mr. Van Loggerenberg. Ms. Snyckers is no longer employed by SARS but Mr. Van Loggerenberg conceded having had romantic relations with her.
89.9 He also stated that he met Ms. Walter alone on 2 September 2013 and that it was during their second meeting on 25 October 2013 that their romantic relationship commenced. In this regard, he also said that he saw nothing wrong with this relationship and stated that he had been deeply in love with Ms. Walter;
89.10 During the first session, Mr. Van Loggerenberg, like others never volunteered the existence of the NRG or the HRIU or any of its predecessors;
89.11 He denied having intercepted any conversation of Ms. Walter or any taxpayer. He also denied having known about the existence of the covert unit, stating that he only became involved later. We find this highly improbable given other evidence which points to his intimate involvement in the functions of the NRG's or its predecessors;
89.12 In respect of Wachizungu he stated that this was a charity organisation he set up in order to contribute to society. He stated that Wachizungu did not receive money directly but rather channeled the money to the relevant charitable organisations and put people in touch with charities to which they wished to contribute. Confronted with the controversy around some of its donors, some of whom had been investigated by SARS, and others who had been in tax disputes with SARS, he said he saw nothing wrong with a donation , no matter where it came from;
89.13 He also testified that he saw nothing wrong with the functions of the NRG. In this regard, he denied having been aware of some of the unlawful activities revealed by some of the members.
Evidence by Other SARS' Officials
90 Apart from Mr. Van Loggerenberg, some of SARS officials that were interviewed included the following:
90.1 Ms. Siobhan Wilson, Specialist: Evidence Management and Technical Support;
90.2 Mr. Clifford Collings, Group Executive: Anti-Corrupti on and Security;
90.3 Ms. Lana Pinkham, Specialist: Evidence Management and Technical Support;
90.4 Mr. Patrick Moeng, Executive: Investigations, Projects and Evidence Support and Acting Group Executive: Projects, Evidence Management and Technical Support;
90.5 Mr. Rudolf Cornelius Terblanche, Senior Manager: Enforcement Risk Planning;
90.6 Mr. Brian Kgomo, Group Executive: Internal Audit;
90.7 Mr. Million Mbatha, Manager: Employee Relations;
90.8 Ms. Raheema Ismael, Senior Manager: Information Management in EMTS;
90.9 9 Mr. Yousuf Denath, Senior Manager: Anti-Corruption and Security;
90.10 Mr. Adrian Lackay, Media Liason;
90.11 Mr. Giorgio Radesich, Group Executive: Governance and Company Secretary;
90.12 Adele Naude, Regional Manager: Evidence Management and Technical Support;
90.13 Ms. Patricia Langa, Senior Manager: Evidence Management and Technical Support;
90.14 Mr. Gene Ravele, Chief Officer: Tax and Customs Enforcement Investigations;
90.15 Mr. Ivan Pillay, Deputy Commissioner;
90.16 Ms. Heidi Niedermeier, Senior Analyst: Anti-Corruption and Security (ACAS);
90.17 Mr. Kgotso Lebotsa, Senior Manager: Evidence Management and Technical Support;
90.18 Ms. Carla Da Silva-Nel, Senior Manager: Anti-Corruption and Security;
90.19 Mr. Jappie Tshabalala, former member of the National Research Group;
90.20 Mr. Dillo Nyaluphi, former member of the National Research Group;
90.21 Mr. Dannie Le Roux, former member of the National Research Group;
90.22 Mr. Piet Swart, Investigator in TCEI;
90.23 Johann De Waal, former member of the National Research Group and High Risk Investigation Unit (current role unknown},
91 We now turn to provide an overview of the views they expressed in respect of Mr. Van Loggerenberg, with a particular focus on the conduct recorded in the terms of reference. The views expressed below therefore emerged from the interviews and are not our personal views. We shall express our analysis later in the report. The views were expressed in the spirit of openness and cooperation with the process. They represent no malice on our part and hopefully on the part of those who expressed them. Although many views were expressed about certain individuals, it would be remiss to simply attribute all statements made to the individuals that made them. Where we conceal the identities of the individuals who expressed certain views, we do so in order not to undermine the very objective of creating a good working relationship between staff members of SARS in the future. There is no need to add to the toxicity of the environment. If anything, this process must seek to build SARS and its internal relations rather than destroy them. These views were also tested against the documentary evidence that was before us.
92 Their varied evidence may be summarized as follows:
92.1 Mr. Van Loggerenberg possesses great investigative skills and is largely an asset to the investigative capacity of SARS;
92.2 2 Mr. Van Loggerenberg is an operator who is not necessarily a strategic thinker or senior manager He tends to act as an operator rather than allow his subordinates to do the work without his interference;
92.3 The fact that top management of SARS comprises former intelligence officers has had unintended consequences for SARS in that these individuals invariably impose a culture that is foreign in a civilian environment;
92.4 Mr. Van Loggerenberg was given carte blanche by SARS' top management and this made SARS vulnerable to possible rogue and improper conduct. This trust which Mr. Van Loggerenberg enjoyed from SARS management was at the expense of other hard-working SARS employees;
92.5 Mr. Van Loggerenberg's romantic involvement with staff members, some of whom were his subordinates, was poor judgment for a manager at his level. Even if the Code of Conduct is silent on this aspect, managers are expected to draw the line between what is right and what is wrong. It is not only about the law or policies, it is also about the domain of ethics . The fact that Mr. Van Loggerenberg simply does not appreciate this point bears testimony to his unsuitability for a senior position requiring strategic thinking and sound personal judgment;
92.6 Having declared his romantic relationship with Ms. Walter rather late, he maintained that he only did so to protect SARS and that, for himself, he saw no conflict in that relationship . He also saw no difficulty with the romantic relations he has had with at least three fellow staff members;
92.7 The first meeting that Mr. Van Loggerenberg had with Ms. Walter was indeed against SARS's policy that no official should meet a taxpayer alone;
92.8 The fact that Mr. Van Loggerenberg only reported the affair with Ms. Walter only on 03 February 2014, a day or two after Ms. Walter had leaked details of the information shared during the relationship, demonstrates that this declaration was not done in good faith;
92.9 Mr. Van Loggerenberg's direct interaction with the media as evidenced by his email communication with certain journalists, violated SARS's policy and Code of Conduct;
92.10 Some of the discussions between Mr. Van Loggerenberg and Ms. Walter and Mr Van Loggerenberg and members of the media bordered on revealing taxpayer information to a third party;
92.11 The use of Wachizungu, the charity organisation in which Mr. Van Loggerenberg is a director, to facilitated donations for what Mr. Van Loggerenberg refers to as a good cause, created some conflict as some of its donors are taxpayers with which SARS had reached settlement after tax non-compliance.
92.12 Some settlements concluded between SARS and tax payers may have been improperly concluded.
The Relationship
93 According to Mr. Van Loggerenberg he first met Ms Walter on 2 September 20133 in an informal meeting which took place in his office at SARS. He had invited Ms Walter in her capacity as chairperson of FITA following a complaint lodged with SARS concerning the illicit sale of cigarettes . The meeting presented Mr. Van Loggerenberg with an opportunity to encourage FITA members to subject themselves to orders in respect of tax and excise and custom duties.4
94 We point out that meeting a taxpayer or his representative alone is a contravention of SARS' Code of Conduct. Section 7.2.3 provides that:
"A SARS official, when acting in an official capacity, must...conduct the meeting in the presence of one or more other SARS officials."
95 To this end, every single person we interviewed, other than Mr. Van Loggerenberg, told us that it was simply not acceptable to meet a taxpayer or a representative of taxpayer alone in order to avoid allegations of corruption, for example .
96 As it later turned out, Ms Walter was wearing a concealed recording device provided to her by the SSA in order to record the meeting as there was a belief held within the SSA that Mr. Van Loggerenberg was corrupt.5 This fact was confirmed by Ms Walter in paragraph 3 of her complaint to SARS, in which she, inter alia, states: "I wore a recording device for the State, as we had always received reports that Mr. Van Loggerenberg was corrupt and protected certain factories in exchange for cash payments".
97 According to Ms. Walter, she received a letter from SARS on 22 October 2013 in her capacity as attorney for Carnilinx in which SARS threatened to withdraw Carnilinx's licence based on an incident that happened in Muldersdrift (the so called "Valanwala" incident). Upon receipt of the letter, Carnilinx instructed Ms Walter to contact Mr. Van Loggerenberg with the purpose of ascertaining whether he was aware of the letter.
98 Coincidentally , Ms Walter had undertaken to respond to Mr. Van Loggerenberg in writing on behalf of FITA regarding their so-called informal meeting of 2 September 2013 but had not, until that date, been able to do so. She then sent a WhatsApp message on the same afternoon of 22 October 2013 apologizing for the delay in responding formally on behalf of FITA. This contact is confirmed by Mr. Van Loggerenberg in paragraph 15 of his affidavit to this panel.
99 It is common cause that it was during the exchange of cell phone messages during the afternoon of 22 October 2013 that Ms Walter and Mr. Van Loggerenberg flirted with each other and ultimately arranged to meet on 25 October 2013.
100 Ms Walter and Mr. Van Loggerenberg met socially, for a date, on the evening of 25 October 2013 at a restaurant called Chefs and Deck in Olympus, Faerie Glen, Pretoria. It is common cause that two of Mr Van Loggerenberg's friends were also present during that evening. It is also common cause that later in the evening, Ms Walter accompanied Mr. Van Loggerenberg to his home where she stayed for the evening. According to Ms Walter, a sexual and intimate relationship commenced that same evening.6
101 It is also common cause that during the early days of their romantic relationship, the couple shared intimacy not only in relation to their feelings for each other, but also in relation to their work and home lives. In paragraph 18 of his affidavit to this panel, Mr. Van Loggerenberg states:
"As our relationship progressed, Walter took me in her confidence and disclosed to me her association with the SSA to a certain degree. I came to discover through conversations with her, that she had disclosed her relationship with me to one of her clients, a tobacco manufacturer and member of FITA, who was subject to SARS investigations at the time, Carnilinx (Pty) Ltd ("Carnilinx"), especially to one of its directors, Mr Adriano Mazzotti. Walter indicated to me that Carnilinx did not regard our dating as a problem or a potential conflict and in fact encouraged it. In response I indicated to her that, as far as I am concerned, our relationship could create a perceived conflict of interest. These discussions took place shortly after the commencement of our romantic relationship at a Pretoria restaurant, Papa's, as well as Van Gaelen's cheese farm near Hartebeespoort Dam. Ultimately I indicated to Walter that I believed that we would not be able to pursue a romantic relationship unless she considered severing her relationship with Carnilinx. I pointed out to her that this was her decision and that I would leave it up to her. She indicated to me that she was in any event in a difficult position concerning her interaction with SSA and Carnilinx, and further indicated to me that she would terminate her attorney/client relationship with Carnilinx."
102 Likewise, Mr Van Loggerenberg shared details of his private life with Ms. Walter during this time, as she states, in paragraph 18 of her complaint to SARS dated 4 July 2014: "During these many initial hours together, Mr. Van Loggerenberg divulged an immense amount of information to me regarding his covert role in the RS-program, his number - RS536 ..." As described above, this number is thought to relate to Mr Van Loggerenberg's number in the Republican Spy Programme of the Apartheid era intelligence structures.
103 It is not clear whether Ms. Walter had immediately obliged with Mr. Van Loggerenberg's suggestion to withdraw as Carnilinx's attorney of record. In paragraph 25 of his affidavit to this panel, Mr. Van Loggerenberg states that: "Despite Walter's decision to sever her attorney/client relationship with Carnilinx, she appeared reluctantto do so immediately."
104 In fact, it appears that Mr. Van Loggerenberg got to know that Ms Walter withdrew as attorney of record for Carnilinx only on 03 February 2014, a date on which Ms Walter forwarded to Mr. Van Loggerenberg (copying Wachizungu) an e-mail she had sent to various people, including Ms Lizette Kriel of SARS, on 16 November 2013 titled "Termination of Mandate - Carnilinx {Pty) Limited". The original e-mail from Ms Walter states: "I confirm that due to personal reasons I have terminated my mandate in respect of your current matters against SARS." A copy of the e-mail of is attached as Annexure "JV5" to Mr. Van Loggerenberg's affidavit to this panel.
105 As stated above, it does not appear that Ms Walter's e-mail of 16 November 2013 terminating her mandate with Carnilinx was ever received by Mr. Van Loggerenberg at any time prior to 03 February 2014 (note that Ms Walter had subsequently interacted with Carnilinx on 31 January 2014 while disclosing certain information to them and to members of the media, a fact which will be dealt with elsewhere below). This doubt by the panel is expressed despite the fact that Ms. Kriel was clearly copied in Ms Walter's e-mail of 16 November 2013. This is because the panel is loath to assume that Ms. Kriel in fact knew the reasons for Ms. Walter's termination of her mandate with Carnilinx or that she in fact forwarded Ms. Walter's original e-mail to Mr. Van Loggerenberg on 16 November 2013, or at all. This last assertion is supported by the following words from Mr. Van Loggerenberg himself: "[Ms Walter] resigned as attorney for Carnilinx during early November 2014. She informed SARS of this in an e-mail dated 16 November 2014 and copied it to me"7 . But Ms Walter only copied Mr. Van Loggerenberg on 03 February 2014.
106 In any event, Ms. Walter's termination of mandate with Carnilinx only happened on 16 November 2013, just under a month after Mr. Van Loggerenberg had known that Ms Walter was attorney of record for Carnilinx, while in a romantic relationship with her.
107 Overall, some of Mr. Van Loggerenberg's assertions in paragraph 18 of his affidavit to this panel confirm Walter's account of events as stated in paragraph 17 of her complaint to SARS dated 4 July 2014. In her complaint to SARS, Ms. Walter states that:
"On 26 October 2013 Mr. Van Loggerenberg and I spent the entire day and evening together. We went to Van Gaalen's Cheese Factory for lunch, took a very long walk together and spent the evening together again. We spent the day of Sunday, 27 October 2013 together and had lunch at Papa's restaurant in Hatfield. I communicated with Mazzetti over the course of the week-end about events. Mr. Van Loggerenberg was aware of this at all times."
108 It is important to note at this point that Mr. Van Loggerenberg knew as early as 26 October 2013 , a day after he commenced a romantic relationship with Ms. Walter, that she was attorney of record for Carnilinx and that she remained so at least until 16 November 2013. However, Mr. Van Loggerenberg seems not to have known that Ms. Walter had terminated her mandate with Carnilinx on 16 November 2013, or at all, until after he got notice of that fact on 03 February 2014 .
109 Mr. Van Loggerenberg sent a letter dated 14 November 2013 to the Chairman and CEO of the TISA, Mr Francois van der Merwe, and the Chairperson of FITA, Ms. Walter. The reference to this letter is "Project Honey Badger". The letter sought to, inter alia, explain "[SARS's] position regarding a number of pertinent compliance issues".
110 In the letter Mr. Van Loggerenberg, on behalf of SARS, discusses SARS's approach to issues of tax compliance by the tobacco industry including, but not limited to: "the nature of crimes being committed by some in the sector", "techniques utilised by suspected offenders to counter attempts by SARS to address the crimes that they stand accused of", "the role of facilitators" and "the reporting of suspected non-compliance to SARS: TCEI".
111 In some parts, the discussions refer to on-going and future plans to combat tax non-compliance by members of the tobacco industry and the concerted effort by the various law enforcement bodies to pursue criminal cases against those who are not compliant. The letter pleads with members of the tobacco industry to be tax compliant and to disclose any past wrong-doings with the view to interact with SARS to rectify. The letter by Mr. Van Loggerenberg to the two industry bodies is attached hereto as Annexure "SR8"
112 On 27 November 2013, Ms. Walter sent an e-mail to one Rae Cruikshank, copying a number of persons including Mr. Van Loggerenberg, titled: "Urgent - Resignation of Chairperson - FITA". Ms. Walter was in effect resigning as chairperson of FITA at the insistence of Mr. Van Loggerenberg. In his affidavit prepared for this panel, Mr. Van Loggerenberg states that:
"During the period November/December 2013 we experienced a happy and content relationship. It was also during this period that Walter and I discussed a perceived conflict in her role as FITA Chairperson, similar to the perceived conflict in respect of her role as attorney for Carnilinx. By that time I had developed a number of concerns in respect of FITA through disclosures made to me by her, in particular the suggestion that FITA was created in conjunction with the SSA, that the information obtained through her as chairperson of FITA was being shared with the SSA and that the SSA representatives were known to me to be part of the Tobacco Task Team under the leadership of Hawk's Brigadier Casper Jonker." 8
113 During our interview with Mr. Van Loggerenberg, he insisted that his concern regarding conflict was not in relation to him but rather in relation to Ms Walter. He categorically denied that the relationship with Ms Walter created a conflict for him as a senior employee of SARS charged with investigating the very people and institutions that Ms. Walter represented in her various roles. According to Mr. Van Loggerenberg, his concern regarding conflict related to Ms. Walter's multiple roles as attorney, a paid informant for BAT UK, and a paid informant for the SSA. In paragraph 35 of his affidavit to this panel, Mr. Van Loggerenberg states, amongst other things, that: "We had numerous arguments in respect of my concerns pertaining to her being an attorney, a paid informant for BAT UK, and a paid informant for the SSA. I was insistent that this presented a severe conflict of interests, not only in respect of herself, but also in respect of the Tobacco Task Team and the attendant state agencies. Walter initially disagreed with me, but ultimately conceded the correctness of my views ..."
114 Mr. Van Loggerenberg's appreciation of a conflict of interest in respect of Ms. Walter is curious if one considers that he remains unable to recognise any conflict of interest in relation to his own conduct.
115 Mr. Van Loggerenberg was clearly informed by Ms. Walter that the information gathered by her as chairperson of FITA was being shared with the SSA. He was told about the SSA representatives who received this information and he knew them to be part of the Tobacco Task Team. Why, as a senior employee of a state institution, albeit a civilian one, and with experience in matters of intelligence did Mr. Van Loggerenberg regard Ms Walter's multiple roles as a conflict? Why did he seek to dissuade her from carrying on as a paid informant of the SSA, against her wish, because he was of the view that she was in conflict?
116 Ms. Walter appeared before the panel accompanied by a member of the Hawks. Ms. Walter's representations to the panel may be summarised as follows:
116.1 Ms. Walter is an attorney and director of her own law firm, Belinda Walter Attorneys Inc. Prior to starting her own law firm she was attorney at another firm where she, amongst other things, was involved in the case of Mr Hennie Delport against SARS. The Delport case relates to illicit tobacco trade and is regarded as the second biggest tax case in the history of SARS after the Dave King matter;
116.2 In 2010, Ms. Walter was recruited by the SSA in the state's fight against the illicit tobacco trade. As part of that fight, she was backed to initiate the formation of the FITA in June 2012. She was elected its first chairperson:
116.3 According to Ms. Walter, she first met Mr. Van Loggerenberg on 4 September 2013 when she was invited to an off-the-record meeting on behalf of FITA. The meeting took place at Mr. van Loggerenberg's office at SARS's Head Office in Bronkhorst Street, Brooklyn. Unbeknown to Mr. Van Loggerenberg, she wore a recording device as she had received reports that Mr. Van Loggerenberg was corrupt and protected certain factories in exchange for cash payments. The meeting took about an hour and she undertook to respond Mr. van Loggerenberg's proposals formally on behalf of FITA;
116.4 On 10 September 2013, Ms. Walter was assaulted near her office and the matter was reported to SAPS Brooklyn. She said that she was informed by Mr. Ian Small-Smith ("Mr Small-Smith") that Mr. van Loggerenberg was aware of the attack, was shocked and asked if he could assist in any way. Mr Small-Smith was close to Mr van Loggerenberg and collected "lunch money" from various tobacco players on behalf of Mr. Van Loggerenberg;
116.5 On 22 October 2013, she received a letter from SARS in her capacity as attorney for Carnilinx. The letter related to the threat of withdrawal of Carnilinx's licence as a result of the so-called Valanwala incident in Muldersdrift. Carnilinx instructed her to contact Mr. van Loggerenberg to ascertain whether he knew of the letter as, according to Carnilinx, a large payment was made to Mr. Small-Smith and Mr. van Loggerenberg in respect of the matter;
116.6 According to Ms. Walter, she contacted Mr. van Loggerenberg through a WhatsApp message in which she apologized for delaying with her formal response to the meeting of the 4th of September 2013. Mr van Loggerenberg responded later that day and they mostly engaged in "playful chatting" which culminated in both of them agreeing to a social date on 25 October 2013 . She informed Mr. Adriano Mazzetti ("Mr. Mazzotti''), one of the directors of Carnilinx, about the developments;
116.7 On the evening of Friday, 25 October 2013, the two met at a restaurant called Chef and Deck in Pretoria East where their romantic relationship started. On that evening and during that entire weekend the couple shared intimate moments together, including intimate details about each other's work and personal lives. This sharing led to the development of trust between Ms. Walter and Mr. van Loggerenberg. According to Ms. Walter, she accepted what she was told by Mr van Loggerenberg on face value;
116.8 During the early stages of the relationship Mr van Loggerenberg showed Ms. Walter the interceptions live on computer and disclosed certain details about a covert team and operations at SARS. Ms. Walter also informed us that she was aware that Mr. van Loggerenberg had a relationship with the media and leaked confidential taxpayer information to them;
116.9 Ms. Walter also informed us that Mr van Loggerenberg fronts a charity called Wachizungu and that although she initially found the efforts noble and self-less. she later saw a different side to it. In her view, the charity was engaging in questionable conduct, especially in relation to its list of donors;
116.1OOn 14 November 2013, Mr van Loggerenberg confirmed to Ms. Walter that his surname is purposefully spelt wrong. He also made reference to interception and surveillance of various tobacco entities;
116.11 On 15 November 2013, Mr. van Loggerenberg informed Ms. Walter that her clients were exposed to full interception on all data, telecommunication and communication and that she was also exposed. He revealed interception of various people and their involvement in criminal activities;
116.12 During December 2013 and the first week of January 2014 she travelled to Namibia, Zambia, Botswana and Mozambique with Mr. Van Loggerenberg but that they we back in South Africa for Christmas (we presume that the return for Christmas was an intervening break from their holiday);
116.130n 31 January 2014, she had a fight with Mr. van Loggerenberg because of his philandering. This was followed by her disclosure of information relating to information shared between her and Mr. van Loggerenberg during their relationship. This disclosure was made on 1 February 2014 to various people in two separate meetings which included a member of the media, directors of Carnilinx and a senior Advocate at the Johannesburg Bar;
116.14 During the evening of 1 February 2014 and the morning of 2 February 2014, Mr. van Loggerenberg both threatened and pleaded with her and her son's safety and instructed her to, amongst other things, break contact with Carnilinx and FITA and retract all statements made on 1 February 2014 and apologise to all those who were present at the meetings of 1 February 2014 . She obliged on 2 February 2014;
116.15 Ms. Walter alleges that on 12 February 2014 Mr. van Loggerenberg gave her a USB memory stick with an analysis software from the SARS interception unit, including information extracted from her telephone. She alleges that the USB memory stick has been secured as evidence by the Hawks;
116.16 direct evidence was presented to the panel showing that Mr. van Loggerenberg indeed intercepted conversations of taxpayers.
The Demise of the Relationship
117 On 31 January 2014, Mr. Van Loggerenberg and Ms. Walter attended a charity cycling rally hosted by Wachizungu. Also present at the rally was Ms. Wilson, an analyst in the Evidence Management and Technical Support unit at SARS. It is now common cause that during a social gathering after the cycling rally, Mr. Van Loggerenberg and Ms. Walter, had a lovers' quarrel caused by Ms Walter's discovery of certain personal messages on Mr. Van Loggerenberg's mobile phone. Present during the quarrel was Ms. Wilson and two other friends of Mr. Van Loggerenberg, a Mr Erich Neethling ("Mr Neethling") and a certain Ms. Lindi Kotze ("Ms. Kotze").
118 Angered and frustrated by events of the previous night, Ms Walter sought to wreak the vengeance of a spurned lover. On 01 February 2014 Ms Walter had a first meeting in Norwood, Johannesburg, with representatives of Carnilinx, which included Mr. Mazzetti, Mr Kyle Phillips ("Mr Phillips"), and Mr Mohammed Sayed ("Mr Sayed"). The meeting also included Mr Malcolm Rees ("Mr Rees"). Ms. Walter disclosed to the meeting certain information pertaining to her work as an SSA and BAT informant as well as her relationship with Mr. Van Loggerenberg. Later on that day, Ms. Walter repeated her allegations in a second meeting held at the chambers of Advocate N Cassim SC ("Adv Cassim SC") in Sandown, Sandton. In the second meeting were the representatives of Carnilinx stated above as well as Adv Cassim SC and Mr Andre Erasmus ("Mr Erasmus") of Edward Nathan Sonnenberg. Nothing really turns on these meetings for present purposes. In any event, the panel deemed it unnecessary to confirm them with the individuals mentioned by Ms. Walter.
119 What was or was not said in the two meetings of 1 February 2014 depends on who relates the story, and the panel will not dwell on the contested versions of parties locked in a combat of their own. Suffice it to state that what was disclosed by Ms. Walter provided the fuel that would spark a break-up of the relationship between Ms. Walter and Mr. Van Loggerenberg on 27 May 2014.
120 In any event, on 2 February 2014 the revelations made by Ms Walter the day before were quickly forgotten and forgiven as the two lovers reconciled. To assure and appease Mr. Van Loggerenberg, Ms. Walter wrote and sent an e mail to all the participants of the previous day's meetings retracting all allegations made against Mr. Van Loggerenberg.
121 The resolution of their quarrel did not, however, stop Mr. Van Loggerenberg from making a rushed effort to disclose his relationship with Ms Walter to his employer, SARS, on 03 February 2014. On that day, Mr. Van Loggerenberg disclosed his love affair with Mr Walter to SARS by handing over a letter of disclosure to Mr Pete Richer ("Mr Richer"). It should be noted at this point that Mr Richer had taken off sick on Friday, 31 January 2014 and was therefore unable to read and/or discuss the letter with Mr. Van Loggerenberg. Mr Richer only returned back to work on 03 March 2014 and still did not find occasion to open and read the letter until 18 June 2014. It is alleged that Mr Richer only took notice of the letter of disclosure of the relationship between Mr. Van Loggerenberg and Ms Walter on 18 June 2014 . We did not interview Mr Richer but all of this is either common cause or is according to Mr. Van Loggerenberg's version of events. Be that as it may, the discussion of the contents of the letter was therefore not possible until 18 June 2014 . A copy of the letter disclosing the romantic relationship between Mr. Van Loggerenberg and Ms. Walter is attached hereto as Annexure "SR9" .
122 It should be noted that Mr. Van Loggerenberg's request for a copy of the e-mail allegedly sent by Ms Walter to Carnilinx withdrawing her attorney-client mandate to act on its behalf in SARS-related matters was made on 03 February 2014 .
123 On 04 February 2014 , Mr. Van Loggerenberg logged a disclosure of the love affair with Ms. Walter on the SARS IT system. Such disclosure is known to be impersonal and not requiring any discussion or interaction between the employee and the employer. A copy of proof that Mr. Van Loggerenberg logged his complaint on the SARS IT system is attached hereto as Annexure "SR10".
124 In the interim, the romantic relationship between Mr. Van Loggerenberg and Ms Walter continued with its ups and downs after the disclosure of the relationship by Mr. Van Loggerenberg on the 3rd and 4th of February 2014. The relationship ended on 27 May 2014 and the fuel which revealed itself for the first time on 1 February 2014 was ignited, starting a media fire that engulfed SARS for the better part of 2014.
Ms. Walter's Tax Audit
125 It is common cause that Mr. van Loggerenberg initiated the audit into Ms. Walter's tax affairs. Although she was romantically involved with her, Mr. Van Loggerenberg told the panel that by asking Ms. Pinkham, his former girlfriend and subordinate, he was of the view that he was not involved in this audit.
126 On 19 November 2013, Ms Walter told us that she received a letter from SARS with reference "Project Honey Badger". We do not have a copy of this letter.
127 On 21 November 2013, Ms Walter sent an e-mail to Mr. Van Loggerenberg referring him to the letter of 19 November 2013. Ms Walter's e-mail notifies Mr. Van Loggerenberg that she has been advised by SSA to regularise her tax affairs. According to Ms Walter, the reason she was notifying SARS was because Mr. Van Loggerenberg in fact advised her to write such an e-mail to SARS. Mr. Van Loggerenberg forwarded Ms Walter's e-mail to Ms Lana Pinkham ("Ms Pinkham"), a Specialist: Evidence Management and Technical Support in TCEI at SARS and Ms Patricia Langa ("Ms Langa"), a Senior Manager: Evidence Management and Technical Support in TCEI at SARS, with the comment: "This e-mail is top secret. Our telephonic discussions refer. Let us discuss and arrange that Lana meets with the lady".
128 On 26 November 2013, Mr. Van Loggerenberg sent an e-mail attaching a draft letter of request to Mr Rudolf Terblanche ("Mr. Terblanche"), Senior Manager: Enforcement Risk Planning at SARS. In the e-mail, Mr. Van Loggerenberg asked Mr Terblanche to request from Her Majesty revenue and Customs (HMRC). At this point, Mr. Van Loggerenberg's personal involvement in Ms. Walter's audit is obvious and negates all attempts at denial to this effect.
129 Ms. Pinkham told the panel that on 04 December 2013, she sent a meeting to request to Ms. Walter and Mr. Van Loggerenberg for a meeting to be held on 15 January 2014 .
130 On 27 May 2014, when the relationship between Mr. Van Loggerenberg and Ms Walter ended, Mr. Van Loggerenberg arranged for Ms Pinkham to hand- over Ms Walter's audit to Mr Riaan De Lange ("Mr De Lange"). The reason for the hand-over was , according to Mr. Van Loggerenberg, Ms. Walter's accusation that he, Mr. Van Loggerenberg, was manipulating the audit by having his ex-girlfriend, Ms. Pinkham, to do the audit.
INTERACTION BETWEEN MR VAN LOGGERENBERG AND MEMBERS OF THE MEDIA
131 We were told by all those we interviewed that Adrian Lackey, as the spokesperson for SARS was the only person who was authorised to communicate on behalf of SARS with the media.
132 Although there is ample evidence to show that Mr. Van Loggerenberg had communicated extensively with members of the media, Mr. Van Loggerenberg, in his affidavit to this panel, says nothing of such communication or possible relationships with members of the media. It was clear to us from our interviews, that Mr. Van Loggerenberg has a collegial relationship with Mr. Lackay and has worked closely with him in addressing media issues pertaining to Mr. Van Loggerenberg's area of operation in SARS.
133 It is, however, also now known that Mr. Van Loggerenberg did not inform Mr. Lackay about some of the interactions he had with members of the media. In fact, in our interviews with Mr. Van Loggerenberg, he indicated to us that he was authorised to speak directly to the media by both Mr. Ravele and Mr. Pillay. Neither of these individuals confirmed such authorisation when asked.
134 The following communication are some of the instances on which Mr. Van Loggerenberg communicated with members of the media without the knowledge of Mr Lackay:
134.1 Mr. Van Loggerenberg sent an e-mail from his SARS e-mail address to a Mail and Guardian journalist on 03 April 2014 stating:
"See photo. Apparently from an event at Carnival City last week. You may recognise General Moonoo and Yusuf Kajee from ATM. People never learn..."
134.2 Besides the fact of failing to keep Mr Lackay informed of his interaction with members of the media, there is something more concerning about this e-mail. Firstly, the e-mail does not appear to be directly related to any particular investigation conducted by Mr. Van Loggerenberg or his division. Secondly, Mr. Van Loggerenberg is communicating with a member of the media about conduct (mere appearance) of a fellow state official which, on the face of it, does not appear harmful. This is the sort of matter which a prudent and conscientious senior executive of an important and sensitive public institution would handle differently, especially if hat executive has a relationship with, and is in the business of co-operating with, law enforcement agencies whose business is to ferret the non-obvious;
134.3 On 16 April 2014 , Mr. Van Loggerenberg sent an e-mail, without Mr Lackay's knowledge, titled " Tobacco and politics" to a journalist of the Sunday Times in which he states:
"ATM/Kajee - Edward Zuma and Deputy Minister Justice John Jeffery; Phoebus Apollo/Delport - Deputy Communication Minister Stella Ndabeni; Carnilinx/Mazzotti & Wingate-Pearce - EFF Julius Malema; BAT - SSA Gibson Njenje/Ferdi Fryer. Can you see the trend?"
134.4 Our comment in relation to this e-mail is that Mr. Van Loggerenberg's conduct amounts to abuse of State power. He has been placed in a unique position of power where he is able to collect and compare information to draw "trends" for purposes of effective tax collection. This panel's view is that the disclosure of such information to a third party unrelated to the work of collecting and comparing taxpayer information is problematic and warrants some sanction;
134.5 On 16 April 2014 having received an email from a journalist of the Sunday Times enquiring about "...where the local manufacturers are making the cigarettes ..." Mr. Van Loggerenberg wrote to the journalist as follows:
"Thank you again for meeting with us. Insofar your question, to be sure - are you asking on or off the record? Give me a day or two and Iwill respond. The condition is that SARS and people in SARS remain anonymous, unless you ask for responses on the record - which I will facilitate in getting for you. I would prefer that you do not talk or refer to "sources/officials close to SARS investigation or SARS" because that in itself creates a perception that SARS leaks information. I want to avoid a situation that pits SARS against the rest of government. Our operations are difficult already. I think it is great that you call them to account for their actions though."
134.6 On 13 May 2014, Mr. Van Loggerenberg sent an e-mail to two journalists in which he states:
"Thought you might be interested in this. You didn't get it from us..."
134.7 On 22 May 2014 Mr. Van Loggerenberg furnished certain information to a Sunday Times journalist stating that:
"Most of them have been reported in the media in one way or another. I am giving you this off the record..."
134.8 Referring to the same information, Mr. Van Loggerenberg sent an email stating as follows to the same journalist who had asked if she could use the information:
"Sure but please don't talk about "sources close to SARS" or any mention of SARS at all. You can say "past media reports" and "talk among those in the know in the industry" were your sources. Will you be prepared to let me have a look at the final before you send it off"
135 We attach as Annexure "SR 11" a file containing a series of similar emails to the media. We have omitted the names of the journalists concerned for two reasons. First, the panel did not interview them. Second, it was in due respect to the media and their professional ethics regarding their sources.
136 It is clear however, that Mr Van Loggerenberg's relationship with the media fell outside of the norms and polices of SARS. We do not have specific evidence of the communication of taxpayer information to the media which would result in a breach of the relevant statutes but despite this-his conduct is reflective of a broader trend of disregarding SARS policies as "not applying to him." This may well be because, as Mr. Pillay pointed out to us, Mr Van Loggerenberg is the best investigator at SARS. This does not however, justify the breach of SARS' media communication policy which has an important purpose of controlling and guiding the information that SARS puts out to the public .
137 Every manager of SARS concurred that the discussion with the media of the nature Mr. Van Loggerenberg had as evidenced by the above quoted emails, was indeed against SARS's own media policy. Mr. Van Loggerenberg did not see any problem with his communication with the media.
WACHIZUNGU
138 Wachizungu Sawa Sawa ("Wachizungu") is a registered charity and non-profit organisation which lists its Board of Directors as Ms Pinkham (Financial Officer), Ms Kotze (Social Media and PR), Ms. Langa (Debt Collector) and Mr. Van Loggerenberg (Beggar-in-Chief) . Wachizungu's website shows that the organisation has three "causes", The Putfoot Foundation, The Vincent Shabalala Trust in Alexander and the Wachizungu Orphanage and Academy in Zambia.
139 According to Mr. Van Loggerenberg, Wachizungu is "100% self-funded" and does not receive any donation from anyone. Its model is that donations may be made directly to any of the three "causes": the Putfoot Foundation, the Vincent Tshabalala Trust and the Wachizungu Orphanage and Academy.
140 In our interview with Ms. Walter, she opined that the Wachizungu Orphanage and Academy was in fact not an orphanage but rather a group of children living with their guardians. In her complaint to SARS dated 4 July 2014, Ms Walter states:
"During our trip in December, we took Christmas presents to orphans in Zambia. Ipersonally purchased all the gifts for each child. There were 20 children ...During December, the people in Zambia were complaining that they did not receive the funds for the children's school fees and there seemed to be confusion around this too."9
141 Regarding the Putfoot Rally which is hosted by the Putfoot Foundation, Ms Walter states:
"The rally takes place over 18 days, delivers school shoes to only 1 or 2 schools (at most) and the rest of the time is a charity-funded holiday of debauchery."10
142 We were informed during interviews with SARS employees that the Putfoot Rally is a 4x4 ride through Southern African countries with the purpose of delivering school shoes to poor children in poor remote villages. The Wachizungu website describes the manner in which the rally contributes to charity as follows:
"Here is how Put Foot Rally supports charity: Firstly, each Crew is free to support a charity of their choice! The first R10, 000 raised must be donated to the Official Rally Charity: "Put Foot Foundation". The Put Foot Rally's "Supporting Charity" policy takes a leading role in the Tourism Industry by encouraging others to contribute and preserve our incredible continent that provides millions every year with an 'African Experience', that future generations may also share in our beautiful land in the future."
143 Mr. Van Loggerenberg himself did not tell us much about Wachizungu except to refer us to the basic information stated on the website and to keep voicing his regret at the decision to have the list of the donors for the three "causes" shown on the website as, in his view, that was cause of the problem.
144 Wachizungu's website lists donors and sponsors to each of its three "causes". By far, the most supported "cause" is the Putfoot Foundation with a longer list compared to other. Overall, the lists consist of a variety of individuals and institutions, including a noticeable number of SARS employees. The lists also consist of a noticeable number of donors and/or sponsors from Kazakhstan and Luxembourg. In our interviews with SARS employees, we were informed that the reason for a noticeable list of Kazakhstan sponsors could be because the South African ambassador to Kazakhstan, a certain Mr Shirish Soni, was a former SARS employee. We have no information about the reasons why there is a noticeable number of donors and/or sponsors based in Luxembourg. Although this appears above board on the face of it, we are of the view that this is something that may require some investigation purely because of the attitude and/or history of Kazakhstan and Luxembourg on matters relating to tax.
145 A further concerning aspect with the lists of donors and/or sponsors associated with Wachizungu is a category of donors and/or sponsors who have crossed swords with SARS or have somehow been the subject of investigation by SARS or are associated with such subjects or are current service providers to SARS. To mention but a few such donors and/or sponsors who have already been mentioned, based on known facts, by some of the witnesses to this panel.
146 Again, this is a matter that requires investigation as it clearly arouses a sense of conflict. We are mindful that Wachizungu is a separate legal entity and SARS has no control over it. However, on balance this panel was of the view that it is inappropriate for a Senior SARS official to be associated with a charity which is donated to amongst others, by those he is responsible for investigating . This was put to Mr. Van Loggerenberg who denied that this was inappropriate or that there was anything untoward about it. One example of the panel's concern is the fact that an attorney representing various individuals under investigation by SARS, whose name is known to the panel, donated through Wachizungu to one of the charities.
147 We were informed during our interviews that the attorney had allegedly extorted payment of a large amount of money from Mr. Mazotti in order that he could bribe Mr. Van Loggerenberg and Mr. Pillay. No bribe was ever in fact given to either Mr. Van Loggerenberg or Mr. Pillay and Mr. Van Loggerenberg disclosed this information to his superior, Mr. Ravele as proof that he had done nothing illegal. However, in the circumstances, any association between Mr. Van Loggerenberg and the attorney or any person being investigated or representing those being investigated by SARS is entirely inappropriate and ought to be sanctioned. In the unique position that Mr Van Loggerenberg held at SARS, even the perception of any relationship with those being investigated by SARS or their representatives, ought to be avoided .
148 Charitable endeavours by Mr Van Loggerenberg can be done in a way which does not compromise the integrity and reputation of SARS. Our comments must not be understood to prevent any SARS employee from engaging in charitable work-the concerns we raise are simply in relation to the donors and manner in which this particular charity operates.
ROMANTIC RELATIONSHIP BETWEEN MR VAN LOGGERENBERG AND OTHER SARS EMPLOYEES
149 Mr. Van Loggerenberg has, on his own version, had romantic relationships with at least three of his fellow SARS employees. We were informed by other interviewees that this number may be higher but we have no independent evidence of this and therefore limit our comments to Mr Van Loggerenberg's relationship with Ms Pinkham, Ms. Wilson and Ms. Snyckers.
150 It is submitted that the fact of a relationship alone is not sufficient for determining whether Mr. Van Loggerenberg's conduct was inappropriate when he entered into those relationships. In our view, each of those relationships should be looked at on its own merits.
Rules Pertaining to Relationships
151 It is clear that SARS has no written policy or rule which precludes and/or regulates intimate relationships between its employees on the one hand and taxpayers/taxpayer representatives/other co-employees on the other. There is no statutory regulation of same either. Once again, Mr. Van Loggerenberg sees no potential conflict for a senior manager at his level in having such affairs.
152 We deal with the issue of co-employees first. In this regard:
152.1 The relationships which Mr. Van Loggerenberg had with co-employees were not in breach of any SARS policy. The co-employees with whom he had relationships were also not in his direct line of authority.
152.2 Mr. Van Loggerenberg commissioned an audit regarding the tax affairs of Ms. Walter. The audit was requested at the time Mr van Loggerenberg was in an intimate relationship with Ms. Walter. He requested that the audit be conducted by Ms. Lana Pinkham in the EMTS division. Mr van Loggerenberg did not disclose to Ms. Pinkham his personal relationship with Ms. Walter. Ms. Pinkham also had a personal relationship with Mr. Van Loggerenberg approximately 5 years ago.
152.3 The perception by Ms. Walter of her audit being compromised by a former girlfriend of Mr. van Loggerenberg was real, in our view, and despite Ms. Pinkham having had recent experience of a 'work ahead process', she should not have been instructed to conduct the audit in the first instance. In fact, the potential threat that Ms. Walter may consider Ms. Pinkham 'biased' against Ms. Walter was the reason advanced by Mr. Van Loggerenberg, (we were informed by Ms. Pinkham), for subsequently removing the audit from Ms. Pinkham. In our interview with Ms. Pinkham's superior at the time, Ms. Patricia Langa. Ms. Langa accepted that Mr. Van Loggerenberg could have asked for someone other than Ms. Pinkham and that he did not inform her at the time that he had a romantic relationship with the person being audited.
152.4 Mr. Van Loggerenberg also had a personal relationship (which ended some time ago) with current Operational Specialist in the EMTS division, Ms. Siobhan Wilson. Ms. Wilson informed her line manager (Ms. Raheema Ismail) about Mr. Van Loggerenberg's relationship with Ms. Walter after conducting a movement control search in January 2014.
This search indicated that Ms. Walter travelled outside the country with Mr. van Loggerenberg in December 2013. This information was relayed to Ms. Pinkham and Mr. van Loggerenberg.
152.5 Interestingly, Ms. Wilson was a member of the NRG. During the interview with the Panel she failed to disclose this fact and/or the extent of her involvement in the NRG.
153 We now turn to the issue of taxpayers/taxpayer representatives. In this regard:
154 The relationship with Ms. Walter (as a taxpayer) and as a taxpayer representative commenced in October 2013. The relationship ended in May 2014 .
155 Mr. Van Loggerenberg 'formally' disclosed this relationship to SARS by way of a written 'confidential disclosure' to Mr. Pete Richer the Acting Chief Officer: Risk, Strategy, Enablement and Communication on 3 February 2014. This was at an advanced stage of the relationship.
156 It is the position of Mr. Van Loggerenberg that his relationship with Ms. Walter was private and not "any business of my employer, unless it can be shown that such were to the detriment of SARS". 11
157 Mr. Van Loggerenberg points out that prior to his disclosure to Mr. Richer he had disclosed the relationship to Mr. Pillay.
158 Mr. Van Loggerenberg in his affidavit 12 at paragraph 18 confirms that he himself recognized at an early stage of the relationship that their "relationship could create a perceived conflict of interest". Mr. Van Loggerenberg's erstwhile attorney Mr. Dokrat on 2 June 201413 confirmed that the relationship with Ms. Walter "was complex from the start, with some overlaps in respect of both [your] professions".
159 This complexity according to Mr. Dokrat was "mitigated" by both Mr. Van Loggerenberg and Ms. Walter. How it is that Mr. Loggerenberg mitigated the complexity of the relationship vis-a-vis SARS is unclear.
160 Interestingly, according to Ms. Wilson her discovery of Ms. Walters' travel outside the country in December 2013 having been discovered by SARS was disclosed to Ms. Walter. This disclosure could only have been made by Mr. Van Loggerenberg. Ms. Walter makes various allegations of other confidential taxpayer information having been disclosed to her by Mr. Van Loggerenberg which is expressly disputed by Mr. Van Loggerenberg. The same applies in relation to alleged interceptions made by SARS.
In our view, the acceptance by Mr. Van Loggerenberg of the need to mitigate the complexity of his relationship; having recognized at an early stage the perception of bias; having removed Ms. Pinkham from the audit, all indicate that he was obligated as a senior manager of SARS to have immediately disclosed the relationship to SARS at an early stage of the relationship. This is notwithstanding there being no rule/policy or law which may have required such disclosure. Such disclosure is to be expected by a senior employee and the failure to recognize such obligation indicates a serious lack of judgment by a senior employee .
MR VAN LOGGERENBERG'S WHATSAPP MESSAGES
161 In this context, one must evaluate communications by Mr Van Loggerenberg in WhatsApp messages to Ms. Walter such as:
'When we start shutting them down it will be chaos. When the tax inquiries start and we start calling their wives, life won't be funny anymore...
In the meantime HMRC will start audit on that side. We will start with the SA leg here. Over R1bn. .
And inspections at each place every 3d day for whole of December and January "14
162 On another occasion, Mr. Van Loggerenberg said the following via WhatsApp to Ms. Walter in relation to Carnilinx:
Van Loggerenberg: "Chottia and Shana {sic) have turned...Carni dead in the water now!
Walter: "Ok. Good. Shane is a sweet youngster. He didn't stand a chance in that family."
Van Loggerenberg: "We are pulling their and ATM's warehouse licences and import/export licences next week. Its pretty much game over for them." 1s
163 Another example of communications which raises concerns is:
Van Loggerenberg: "I've just had a meeting with Ivan. We are going for them. Data protection's ass... We are not going to investigate them. The HMRC and SFO will. We will be doing it here in SA on BATSA."
164 There are numerous other examples of communications such as these between Mr. Van Loggerenberg and Ms. Walter that concern amongst others, her clients, and principals in the illicit tobacco industry and of concern, SARS's ongoing investigations. Even if these communications may not amount to a breach of the TAA specifically, it is certainly inappropriate for a senior SARS official to be divulging such details to his romantic partner, in particular when the partner is so intricately involved with the very people he is investigating. We attach a file containing these messages as Annexure "SR12"
165 In relation to the question of whether Mr. Van Loggerenberg deliberately set out to establish a relationship with Ms. Walter for the purposes of obtaining incriminating information about her clients, many of whom are suspected of being involved in illicit tobacco trading, it is our view that there is no specific evidence to prove this. However, Mr. Van Loggerenberg did seek Ms. Walter's assistance on occasion in relation to those he was investigating:
Van Loggerenberg: "I need to ask you something which you may never repeat or discuss no matter what. Once you have answered, put it out of your mind, ok? Have you ever come across or heard of the terms "The Mill" in Houghton used by AM or KP?
Walter: "Yes, I've heard the terms. They go there every Friday or something? I can't think exactly. There are few places they meet. The Mill is one of the code words for one such place...the last time I met them when AM left and KP, MS and Iwent to Melrose Arch for lunch - I know that they spoke of it to meet up there. It was one of 2 places mentioned. I never ask...ls the Mill not Branded World's offices? The "word" they use?
Van Loggerenberg: "Thank you"
166 We do note, however, that there are not many such obvious instances in which Mr. Van Loggerenberg can be seen to be obtaining information from Ms. Walter. However, as referred to above, their communications do reveal the free flow of information about SARS investigations and specific individuals of interest to SARS.
CODE OF CONDUCT AND THE TAX ADMINISTRATION ACT
Code of Conduct
167 In order to place in context the conduct we sought to investigate, we requested a copy of the most recent Code of Conduct from SARS. We also did this in order to make a proper assessment of the conduct of Mr. Loggerenberg and to ensure that we offered appropriate advice regarding future conduct of SARS's officials facing circumstances in which Mr. Loggerenberg found himself or allowed himself to be in.
168 SARS's Code of Conduct was developed in 1993 and was revised in its 2004 editorial policies to incorporate new developments and changes in the law. It has since been revised following the investigation into the conduct of the previous Commissioner, Mr. Oupa Magashula during 2013. As revised, the Ethics and Code of Conduct affirms a commitment to the principle of good governance.
169 The purpose of the Code is recorded as being to "express the set of values and behaviours expected of SARS officials, to ensure that SARS officials conduct themselves in an appropriate and ethical manner. These values and behaviours are essential for the effective administration of a tax system and form one of the cornerstones of SARS' model of good governance."
170 The Code of Conduct states emphatically "Any employee who violates this Code of Conduct will face Disciplinary action." Relevant parts of the Code of Conduct are set out below. A copy of the revised Code of Conduct is attached as Annexure "SR13".
171 The previous versions of the Code of Conduct have always provided that: "Good governance is essential for the effective
administration of a tax system. The management of SARS is acutely conscious of and seeks to implement good governance principles. Good governance means promoting values for the whole of SARS and demonstrati ng the values of good governance through behaviour."
172 The Code of Conduct has always embraced the following values:
172.1 mutual trust and respect;
172.2 equity and fairness;
172.3 integrity and honesty;
172.4 transparency and openness; and
172.5 courtesy and commitment.
173 Section 10.2 of the Code of Conduct provides in relevant part that:
"A SARS official, whether acting in an official or non-official capacity. . . must not behave in a manner that may compromise the official or cause reputational harm to SARS."
174 Section 4.2 of the Code of Conduct deals with ethical standards for SARS officials and stresses that:
"SARS officials must endeavour to promote and maintain a high standard of professionalism and ethical behaviour."
175 Section 4.4 provides:
"SARS officials must avoid making misleading statements to the prejudice of the reputation of SARS to the legislature, executive, public, other public servants or organs of state or colleagues."
176 Section 9.2 provides:
" A SARS official must. . . refrain from favouring relatives, friends and related entities in work-related activities."
177 Section 10.2 provides:
"A SARS official whether acting in an official or non-official capacity must...not behave in a manner that may compromise the official or cause reputational harm to SARS."
178 Section 10.5 provides:
"A SARS official, whether acting in an official or non-official capacity, must . . .unless specifically authorized, not make public statements or speak or disclose information to the media or public regarding any SARS related matter."
179 We assess and make findings in respect of the the conduct of Mr. Van Loggerenberg in the context of the above regulatory and policy scheme.
The Tax Administration Act
180 The Tax Administration Act 28 of 2011 ("the TAA") regulates the disclosure of confidential tax payer information and is therefore relevant to the terms of reference of this panel.
181 In particular, chapter 6 of the TAA deals with a variety of obligations imposed on SARS employees in relation to tax payer information.
182 Of relevance are section 67 (3)-(5) of the TAA:
"(3) In the event of the disclosure of SARS confidential information or taxpayer information contrary to this Chapter, the person to whom it was so disclosed may not in any manner disclose, publish or make it known to any other person who is not a SARS official.
(4) A person who receives information under section 68, 69,
70 or 71, must preserve the secrecy of the information and may only disclose the information to another person if the disclosure is necessary to perform the functions specified in those sections.
(5) The Commissioner may, for purposes of protecting the integrity and reputation of SARS as an organisation and after giving the taxpayer at least 24 hours' notice, disclose taxpayer information to the extent necessary to counter or rebut false allegations or information disclosed by the taxpayer, the taxpayer's duly authorised representative or other person acting under the instructions of the taxpayer and published in the media or in any other manner."
183 The TAA defines "taxpayer information" in section 67(1)(b) as "any information provided by a taxpayer or obtained by SARS in respect of the taxpayer, including biometric information."
CONFLICT OF INTEREST
184 This panel has difficulties comprehending the logic behind Mr. Van Loggerenberg's belief that there was no conflict presented by his position as a SARS senior employee and a public servant charged with investigating the tobacco industry, on the one hand, and his relationship with a legal representative and chairperson of a tobacco industry body whose members are under investigation by his employer, on the other hand. Our view is that while their relationship may not have breached any particular policy of SARS, it raises concerns of poor judgment on the part of a senior SARS official.
185 That this is so is clear from the following:
185.1 Ms Walter, whilst working for a different firm of attorneys, was one of the legal representatives of Mr Hennie Delport ("Mr. Delport") and Phoebus Apollo (Pty) Ltd during their protracted legal battles with SARS. The Delport/Phoebus Apollo case is regarded by some SARS investigators we interviewed as the second biggest tax case in the history of SARS after the Dave King matter. That Ms. Walter represented Mr. Delport seems to be well known by those who were close to the investigation. Despite this Mr. Van Loggerenberg claims not to have known who she was when he first encountered her. Through our investigations, we were told that even relatively low level employees involved in SARS investigations in the tobacco industry knew who she was and what she looked like;
185.2 Ms. Walter informed Mr. Van Loggerenberg a day after the commencement of their romantic relationship, on 26 October 2013, that she was the attorney of record for Carnilinx and that she was in communication with Mazzetti. She also indicated that she had informed Carnilinx of their relationship and that they had encouraged it. At the time, Carnilinx, under the leadership of Mazzetti, was under investigation by Mr. Van Loggerenberg's division in SARS. Whilst sharing intimate feelings and information between them, Ms Walter remained Carnilinx's attorney of record for at least another three weeks of their relationship until 16 November 2013. In respect of Mr. Van Loggerenberg's own knowledge, this time could be stretched to 03 February 2014. As it appears elsewhere below, Ms Walter maintained some contact with the directors of Carnilinx even after she had withdrawn as its attorney of records on 16 November 2013;
185.3 Before the commencement of their romantic relationship, Mr. Van Loggerenberg knew that Ms. Walter was chairperson of FITA. In fact, Mr. Van Loggerenberg alleges to have met Ms. Walter for the first time in an informal meeting between him and Ms. Walter in her capacity as chairperson of FITA. Their second meeting on 25 October 2013 during which their romantic relationship was consummated was a direct follow up of that first business meeting. At the time, Mr. Van Loggerenberg did not know that the chairperson of FITA was an agent of the State, someone she could form an agreeable acquaintance with. All he knew was that Ms. Walter was the chairperson of a grouping of small to medium size tobacco traders who are mostly not tax compliant and some of whom have had a run-in with SARS and law enforcement agencies. It is mostly the members of FITA who are the target of law enforcement agencies such as the SSA and the Tobacco Task Team under the Hawks. When Mr. Van Loggerenberg invited the chairperson of FITA on 04 September 2013, or thereabout, it was because of "a complaint lodged with SARS concerning the sale of cigarettes" and "to encourage FITA members to subject themselves to orders in respect of tax and excise and custom duties";
185.4 As an employee of a civilian institution of the State and, as a non-spy, Mr. Van Loggerenberg was not in a position to assess the legitimacy or illegitimacy and merits or demerits of the roles played by a State informant working to achieve unknown law enforcement objectives. In fact, our view is that he was not even required to do so. All he has are the laws and principles governing the institution for which he is an employee and leader. As will become obvious below, the laws and principles governing SARS simply do not permit a romantic relationship with a representative of a taxpayer under investigation.
FINDINGS
186 In light of the above set of facts, our findings are as follows:
186.1 While SARS remains an efficient and effective organisation , the unlawful establishment of a unit that operated ostensibly in a covert manner, has created a climate of intrigue, fear and subterfuge within the organisation;
186.2 While we consider it improbable that Mr. Van Loggerenberg was unaware of the manner in which the Special Projects Unit, the NRG and/or High Risk Investigation Unit operated, he was not responsible for their establishment;
186.3 Although he was indeed intimately involved in the functioning and later management of the NRG, there is no direct evidence linking him to any illegal interception of conversations of Ms. Walter or any other taxpayer;
186.4 Although his involvement with Ms. Walter was improper, there is no evidence that he entered the relationship with the sole purpose of obtaining incriminating information about Ms. Walter's clients;
187 Mr. Van Loggerenberg as a senior manager must be judged by a much higher standard than an ordinary employee of SARS. Accordingly, it is found in this regard that:
187.1 Mr. Van Loggerenberg is clearly an experienced investigator, but has no appreciation of the domain of ethics and standards by which senior management must conduct themselves within a civilian structure. His failure to see conflicts of interest in his conduct demonstrates that he should remain in positions in which he must be an operator rather than a senior manager;
187.2 His interaction and disclosure of certain information to the media was in violation of SARS's Code of Conduct. The nature of his correspondence with the media had the potential to bring SARS into disrepute;
187.3 His initial meeting with Ms. Walter was clearly in violation of SARS's Code of Conduct that no official must meet a taxpayer alone;
187.4 Although there is no SARS policy prohibiting a romantic relationship with a taxpayer under investigation or a representative of such taxpayer, Mr. Van Loggerenberg's relationship with Ms. Walter showed poor judgment on his part as there was a conflict in his role as an investigator and that of Ms. Walter as a representative of FITA and Carnilinx. In particular, in his failure timeously to disclose the relationship, he failed in his duty as a senior manager to report a potential conflict as would be required of a manager at his level;
187.5 Although there is no SARS policy prohibiting romantic involvement with fellow staff members, it was poor judgment for Mr. Van Loggerenberg to get involved with staff members, particularly those subordinate to him;
187.6 Mr. Loggerenberg's role in the audit conducted on Ms. Walter while he was in a romantic relationship with her was in violation of the Code of Conduct and the principles of good governance;
187.7 Mr. Van Loggerenberg did declare his involvement in Wachizungu and on this narrow basis, he met the obligations to declare an interest;
187.8 Given his role in Wachizungu, there is a potential conflict of interest in so far as some of the donors are entities and persons that either have disputes with SARS or remain or have been SARS's service providers.
187.9 While the panel was uncomfortable about the role of Wachizungu even in what Mr. Van Loggerenberg calls a good cause the panel lacked the requisite lawful basis to investigate a separate legal entity and its activities. However, if SARS has some legal basis to inquire into the affairs of Wachizungu, the panel highly recommend it.
188 In respect of the establishment of the Special projects Unit, NRG and High Risk Investigations Unit, we find as follows:
188.1 The establishment of the unit without having the requisite statutory authority was indeed unlawful;
188.2 There is prima facie evidence that the unit may have abused its power and resources by engaging in activities that reside in the other agencies of Government, and which it had no lawful authority to perform;
188.3 There is prima facie evidence that the recruitment, funding and practices of the unit were in violation of SARS's own Human Resources policy;
188.4 There is prima facie evidence that the existence of this unit had the real possibility of undermining the work of those agencies tasked with the investigation of organised crime and the collection of intelligence;
188.5 There is prima facie evidence suggesting that the activities of the Special Projects Unit may have included rogue behavior that had the potential to damage the reputation of SARS as an organ of state;
189 Finally, there appears to be serious concerns about whether settlements concluded with taxpayers who were the subject of investigation, were validly and properly concluded.
RECOMMENDATIONS
190 In light of the above findings, we make the following recommendations:
190.1 SARS should include in its Code of Conduct some guidelines regarding romantic relationships between its senior managers and staff.
190.2 SARS should clearly develop formal operational relations with state agencies authorized to gather intelligence and investigate organized crime. In this regard, SARS in co-operation with the relevant organs, should develop clear guidelines for co-operation in respect of SARS's own mandate;
190.3 SARS should institute disciplinary proceedings in accordance with its Code of Conduct and Disciplinary processes and charge Mr. Van Loggerenberg in regard to the following conduct:
190.3.1 His unauthorized engagement with and disclosure of information to the media and consequently bringing SARS into disrepute;
190.3.2 His unauthorized disclosure of certain information to Ms. Walter and consequently violating section 7 of the TAA;
190.3.3 Failure to adhere to SARS's Code of Conduct by meeting Ms. Walter alone on 2 September 2013;
190.3.4 Conducting himself in a manner which brought SARS into disrepute in ;
190.3.5 His involvement in the audit of Ms. Walter in violation of the principles of good governance and in violation of the Code of Conduct;
190.3.6 His conduct in engaging in a romantic relationship with Ms. Walter while knowing that she was a representative of entities that were under investigation by SARS;
190.3.7 His involvement in Wachizungu with full knowledge that some of its donors had had their disputes settled with SARS, were under investigation or represented entities under investigation by SARS had the potential to bring SARS into disrepute.
190.4 In respect of the unlawful establishment of the Special Projects UniUNRG/HRIU the following is recommended:
190.4.1 As we understand it, the Inspector General of Intelligence is already investigating Ms. Walter's complaint. The activities and functions of this unit must be specifically investigated by the Inspector General, alternatively;
190.4.2 We are of the view that the Commissioner should recommend to the President that a judicial commission of inquiry with powers of compulsion in terms of section 3 of the Commissions Act 8 of 1947 should be appointed. Such Commission, if considered should inquire into the activities, funding, management of the NRG and its predecessors as well to determine if there has been improper conduct on the part of senior government officials, including those who may have left their positions. We are of the view that an unlawful establishment of a covert unit within a civilian organ of state is indeed a matter of public concern as envisaged in section 1 of the Commissions Act.
190.4.3 SARS should ensure that proper structures of co-operation between SARS and Government agencies statutorily tasked with intelligence gathering and crime investigation are established in order to assist SARS with the capacity it may require. Alternatively, the Commissioner, through the Minister of Finance may request Parliament to enact legislation giving SARS the investigative capacity it requires.
190.4.4 SARS should conduct a forensic investigation into all the settlements concluded with tax payers that had been under investigation since 2005.
190.4.5 In the meantime, we recommend that the Commissioner moves speedily to put in place a process to ensure that the NRG or HRIU are truly disbanded, persons involved are debriefed, protected from intimidation and are reintegrated into SARS's official and civilian structures .
CONCLUSION
191 We express our sincerest gratitude to both Commissioner Moyane and Deputy Commissioner Pillay for their confidence in us and for giving us the opportunity to assist this important organisation of the democratic South Africa. We have endeavored to the best of our abilities to execute our task with integrity and without fear or favour to anyone and with the sole intention of assisting in the strengthening of SARS.
192 The panel was acutely mindful of the complexity of issues facing SARS and sought to approach the investigation as objectively as it could.
193 On a more personal note, I am indebted to the capable professionals with whom I performed this task . They are Adv. Nasreen Rajab-Budlender, Advocate Patrick Ramano, Mr. lmraan Mahomed as well as our administrative support in the ever-efficient Ms. Ntokozo Langa. We shared a common philosophy on the basis of which such a delicate assignment was to be approached. We all regarded integrity and fairness as the fundamental tools of the task we were asked to perform. I am highly indebted to them for their assistance and insights. No day passed without our long discussions and analysis of the evidence and what it reflected, as well as how best to do our job without trampling on the rights of people or disrupting the functioning of SARS as an institution.
194 I am thankful to all the persons who appeared before the panel, including Mr. Van Loggerenberg and Ms. Walter.
195 I am equally indebted to the entire staff of SARS who have waited patiently while this process was taking place. I am conscious of the profound effect this investigation may have had on their morale. I am confident that our recommendations, if implemented, will enhance their excellent work.
196 This report is final and some of the information it contains relate to pending investigations . We trust that such information will be handled with the confidentiality it deserves.
PRESENTED BY:
Adv. Muzi Sikhakhane
Adv. Nasreen Rajab-Budlender
Adv. Patrick Ramano
5 NOVEMBER 2014
Footnotes:
1 At paragraph 25 of Mr. Van Loggerenberg's affidavit to this panel
2 See paragraph 42 of Mr. Van Loggerenberg's affidavit to this panel
3 In paragraph 3 of her complaint to SARS dated 4 July 2014, Ms. Walter states the date as 4 September 2013 .
4 At paragraph 13 of Mr. Van Loggerenberg's affidavit to this panel
5 At paragraph 13 of Mr. Van Loggerenberg's affidavit to this panel
6 At paragraph 16 of Walter's complaint to SARS dated 4 July 2014 .
8 At paragraph 29
9 At paragraph 42
10 At paragraph 46
11 Mr. Van Loggerenberg Affidavit to Panel dated 16 October 2014 , para 44.
12 Mr. Van Loggerenberg Affidavit to Panel dated 16 October 2014
13 Letter to Ms Walter, para 3 and 4.
14 Whatsapp message from Mr.Van Loggerenberg to Ms Walter, 12/4/2013 between 4.11pm to 4.14p.
15 Whatsapp 28/11/2013 10.1Bpm-10.20pm.
Source: www.sars.gov.za
