Finance Minister Pravin Gordhan on Wednesday informed the Hawks that he needs more time before responding to their questions regarding the alleged “rogue unit” at the SA Revenue Services (Sars).
They had given him until Wednesday to respond.
National Treasury sent media a legal letter that Gordhan’s lawyers, Gildenhuys Malatji, sent to the office of the national head of the Directorate for Priority Crime Investigation, informing them of his intention to miss the deadline.
"He will respond in due course, once he has properly examined the questions and ascertained what information, of the information you request, he is able to provide," the letter states.
Importantly, Gordhan wants to know on what authority the Hawks have to ask him these questions.
“We request the following information to assist him in preparing his response: On what authority do you rely on directing these questions to the honourable minister? Are you investigating any offence? If so, what is it?”
Police Minister Nkosinathi Nhleko said at a press conference on Wednesday that the Hawks took over the investigations in May 2015 after criminal complaint was laid. "The complainant was Sars," he said.
The investigation that is currently under way is about the establishment of the rogue unit, said Nhleko. "A number of other people will be spoken to," he said.
Nhleko said he saw nothing wrong with the response from Gordhan to seek an extension on the deadline.
Hawks not authorised - constitutional law expert
This follows a blog post in which constitutional law expert Pierre de Vos said the Hawks are not authorised to investigate the establishment of the intelligence unit in Sars.
“The Hawks needs to clarify the legal mandate in terms of which it is investigating a non-criminal matter,” De Vos wrote on Tuesday.
“In the absence of a credible explanation - and in the light of the findings of dishonesty on the part of the Hawks head (Berning Ntlemeza) who also happens to be an apartheid cop - serious questions arise about the credibility as well as about is legality of the Hawks investigation,” he said.
“It is unclear what the legal basis is for the Hawks investigation relating to the establishment of a so-called ‘rogue spy unit’ by Sars as the relevant legislation does not create any criminal offences that the Hawks would be entitled to investigate,” he said.
De Vos said Ntlemeza “did not refer to the specific crimes being investigated, nor to the specific sections of the relevant legislation, which supposedly created criminal offences allegedly breached by Sars officials when it created the so-called ‘rogue spy unit’.”
In the letter, Malatji points out that at the time the Hawks addressed its first letter to Gordhan (February 19) he was busy preparing the National Budget speech.
When Ntlemeza telephoned to speak to Gordhan at the time, he (Ntlemeza) was - according to Malatji - informed to contact Gordhan after the budget speech.
"You are aware of the national importance of the budget speech, and that he [Gordhan] was not able to permit any distractions to jeopardise the budget processes," Malatji tells Ntlemeza in the letter.
"In the circumstances, he has only just been able to begin to consult with his legal representatives on the best way in which to respond to your letter, and the questions annexed to it. He is therefore unable to respond by 16:00 today as you have requested."
Hawks not probing Gordhan "per se"
On Monday, the Hawks said they never meant to investigate Gordhan and that he was merely the "suitable man to talk to".
"We can confirm that as the Hawks we are investigating a case concerning the alleged illegal operations by a so-called ‘rogue unit’ within the South African Revenue Services (Sars), not Mr Gordhan per se," the Hawks said in a statement.
He was a commissioner at Sars at the time when a covert unit was allegedly established.
"As part of our thorough investigations into the operations of the said unit we needed some clarity and Mr Gordhan, who was the man at the helm of Sars at that time, was the suitable man to talk to, hence we sent him a set of questions for him to answer.
The 27 questions the Hawks want Gordhan to answer are:
1 Does the minister have any knowledge of the disbandment of the National Research Group (NRG) in 2009 when you were the Sars commissioner, leading to the establishment of the High Risk Investigation Unit (HRIU) or the “rogue unit”?
2 Were there any inputs you gave for the establishment of the NRG or the HRIU?
3 Who were the stakeholders who would form part of the new unit?
4 Do you still remember yourself as the commissioner of Sars recommending the funding model to the then minister Trevor Manuel in February 2007 for “funding of an intelligence capability within National Intelligence Agency (NIA) in support of Sars”?
5 How were the members of the unit recruited/selected? Were Sars recruitment processes followed?
6 How is it possible that you recruit even before funding approval is granted for such a capability to exist?
7 Kindly share with us or provide a copy of the agreement between the NIA and Sars.
8 What were the aims and objectives [mandate] of the new unit and subsequent operating environments as it changed its name?
9 Who was heading the unit and who was it responsible and accountable to?
10 Who were Janse van Rensburg, Johan de Waal, Johan van Loggerenberg and Helgard Lombard at Sars, and what were their positions, roles and responsibilities within the unit?
11 As the commissioner [accounting officer] for Sars at the time, were you briefed about all key strategic operations?
11.1 Do you know anything about operation code named “Sunday Evenings”? The bugging or installation of sophisticated surveillance equipment at National Prosecuting Authority offices?
11.2 Who authorised it? Is this in line with Sars’ mandate?
11.3 What were its objective and targets?
12Do you know or still remember the HRIU mandate?
13 Did the minister of intelligence [Ronnie Kasrils] approve the establishment of and identify members of the NIA to work within HRIU? Provide evidence.
14 Were there things at Sars [when you were the commissioner] that would have happened without your knowledge?
15 Did members of HRIU appear on the Sars normal employees’ payroll? Please explain why some, if not all, unit members had two Sars identification cards [one with fake employee details].
16 If this unit was operating legitimately, why were they operating from guesthouses, hotels, restaurants and their private dwellings? Further, why were they not provided with Sars laptops to store confidential information?
17 How was the funding of the unit’s operations managed? Which cost centres were employed?
18 Who was the head of the unit and who was it reporting to?
19 Were there any members of HRIU who did not have personal files at Sars? Can you tell us why, if any?
20 Who authorised the procurement of the surveillance equipment to be utilised during the unit’s operations?
21 What were Ivan Pillay’s functions at Sars from the period he started working until he retired? The functions must also include the period he was rehired after submitting an early retirement from Sars. And what are his academic qualifications?
22 Do you still remember which year Ivan Pillay took an early retirement?
23 Is it normal in terms of Treasury or pension fund regulations for any department to accept its employee’s early retirement?
24 Why did you authorise that Sars must pay Ivan Pillay an early retirement penalty to the tune of R1.2-million?
25 Kindly explain why Sars re-employed Ivan Pillay for three years and then extended his contract to five years. In short, he was offered an additional eight-year employment contract – why?
26 We believe you are aware of the KPMG forensic investigations into the existence of a rogue unit at Sars. Do you perhaps have a clue as to why such an investigation is conducted?
27 Did the minister of finance receive the KPMG report? If yes, have you read it since you took office, or did you request to be briefed about its contents by the deputy minister or the commissioner? Have you made any contact with Judge Kroon, the chair of Sars’ advisory board on this matter, who is supposed to advise both yourself and the commissioner?