5 IN THE HIGH COURT OF SOUTH AFRICA, GAUTENG DIVISION, PRETORIA Case number: In the matter between: VLOK SYMINGTON Applicant And SOUTH AFRICAN REVENUE SERVICE Respondent FOUNDING AFFIDAVIT |, the undersigned JOHAN DANIEL VLOK SYMINGTON do hereby state under oath: 4. | am a major male, employed by the respondent in the position of Principal Specialist in the Legal Counsel Division of SARS. I have been in the employ of SARS’ Legal Counsel division since 1990. 2. ‘The facts contained herein are within my personal knowledge and belief, unless the context indicates otherwise, and are true and correct. Where submissions of a legal nature are made, they are done so on the basis of legal advice received. Page 1 of 426 3. Evidence regarding events of a broader nature that do not involve me personally, has been obtained by my legal representatives, and either forms part of the public record, or of litigation in other matters, or is verified by way of confirmatory affidavit, where this has been possible. 4, The first respondent is the South African Revenue Service, a statutory tax collection authority with address at 299 Bronkhorst Street, Nieuw Muckleneuk, Pretoria. This appli 5, This is an urgent application in which | seek declaratory relief, and an interdict against pending disciplinary action that SARS has instituted against me. 6. ‘The basis of this application is that | have made several disclosures, which qualify as “protected disclosures” as defined in sections 1, 5 and 9 of the Protected Disclosures Act 26 of 2000 (‘the PDA’). As a result of, having made these disclosures, | now face a disciplinary hearing, and probable dismissal from my employment with SARS. | am advised that | qualify for protection from such actions, which all amount to “occupational detriment’, in terms of the PDA. r ‘The disclosures relate to events that took place on 18 October 2016, which are described more fully below. However, in order to motivate why the disclosures constitute protected disclosures that justify the relief sought it is necessary to provide an account of the larger events Page 2 of 42 ne7 leading up to the incident on 18 October 2016, Most of these events do not involve me personally, but serve to illustrate why the events involving me took place at all | will endeavour to deal with the facts in chronological sequence, in order to give an accurate account of events. In particular, the events of 18 October 2016 must be understood in the broader context of the issues of State Capture, and the attempts to oust Mr Pravin Gordhan (‘Gordhan’), former Minister of Finance, from his position. Broader background 9. 10. 41 12. What follows under this heading is what | understand and am advised forms part of the public record or falls within the public domain, and is regularly reported by the media. It is has been widely reported in the media that the Gupta family and their associates operate in close association with politicians and highly placed persons in securing lucrative state funded tenders, and may be involved in corrupt activities. During December 2015, Mr Nhlanhla Nene ("Nene") was summarily removed from the position of Minister of Finance, by President Zuma (‘the President’). He was replaced by Mr Des van Rooyen (‘Van Rooyen’), a relatively unknown Member of Parliament. Immediately after his appointment as Minister of Finance, van Rooyen arrived at National Treasury with Gupta-associates, who were Page 3 of 4213, 14, 15. 8 introduced as his special advisers. It is widely believed that the plan was to have Van Rooyen, assisted by the Gupta-appointed advisers, fast-track the proposed Nuclear Procurement Scheme, a trllion-rand project that was facing opposition from within Treasury, and which Minister Nene was actively impeding. This was met with widespread public condemnation, and within days the President replaced Van Rooyen with Gordhan. Gordhan had previously served as Minister of Finance during the period 2009 to 2014 and 2015 to 2017 and was widely respected for his competence and integrity. Gordhan had also served as Commissioner of SARS during the period 1999-2009, and had received wide acclaim for his excellent leadership. Gordhan was seen as a safe candidate to run the Ministry of Finance following Nene's removal. Shortly thereafier, allegations of State Capture emerged in the media. In January 2016, Mr Neebisi Jonas ("Jonas"), the then Deputy Minister of Finance, revealed that during late 2015 he had been offered the position of Minister of Finance by the Gupta brothers, and a bribe of some R600-million, if he agreed to ensure that National Treasury (which falls under the authority of the Minister of Finance) would cooperate with their efforts to secure more contracts from the State and State- owned enterprises (“SOE's”) such as Eskom and Transnet, and would assist them in transferring moneys offshore. Page 4 of 42 DR16. 47. 18. 19. 20. 21. 9 Minister Jonas is reported to have refused the Guptas’ offer and the bribe, His revelations caused an uproar and prompted further revelations by politicians (including Vytjie Mentor MP) as to efforts by the Guptas to bribe them. Minister Gordhan, together with Deputy Minister Jonas and officials in National Treasury, started investigating irregular spending in SOE's such as Eskom, where massive looting was reported to be taking place. It appeared that Gordhan and Jonas were an obstacle to those parties involved in State Capture, and that efforts were made to discredit them or remove them from office, What then transpired was that the Commissioner of SARS, Mr Tom Moyane (“Moyane"), and SARS laid a criminal complaint with the South Aftican Police Service ("SAPS") against, inter alios, Gordhan in respect of the setting up of an alleged rogue investigative unit within SARS. During the early parts of 2016, it was widely reported that the Hawks were investigating a broad range of serious allegations against Minister Gordhan, which included his involvement in the so-called SARS ‘Rogue Unit’ and its activities. On or about 28 February 2016, General Berning Ntlemeza (’Ntlemeza"), former head of the Directorate for Priority Crimes Investigations (‘the Hawks") wrote a letter to Gordhan requiring him to answer a list of 27 questions relating to the so-called SARS rogue unit. Page 5 of 42 Ne22. 10 Some of these questions relate to the subject matter of this litigation, being questions. =—«21-25, which = read as_— follows: "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 thon extended his contract to five years. In short, he was offered an additional eight-year. employment — contract. =~ ~—why?” Gordhan responded to the questions posed by the Hawks, through a media statement published on 30 March 2016. Page 6 of 42 Ao23, 24, 25. 11 On 11 October 2016, the National Director of Public Prosecutions, Advocate Shaun Abrahams (“Abrahams" or “the NDPP”) called a press conference, where he announced that charges of fraud would be brought against Minister Gordhan, Mr Oupa Magashule, a former Commissioner of SARS ("Magashule”), and Mr Ivan Pillay, a former Deputy Commissioner of SARS (‘Pillay’). The fraud charges related not to the so-called rogue unit but to the approval during 2009 of a request by Pillay that he be allowed to take early retirement, and thereafter that he be appointed by SARS on a fixed term contract basis, At the time of the request, | furnished a legal opinion in the form of a memorandum to the then Commissioner (at the Commissioner's instance), in which | had expressed the view that the request was proper, and did not contravene any statute, regulation, SARS rule or provision of the Government Employees Pension Fund ('GEPF”). Pillay's request was duly approved by Magashule (as Commissioner) and Minister Gordhan. | deal with this issue in further detail elsewhere in this affidavit. The abovementioned memorandum (which is later referred to as the 2009 Memorandum) became a central document in the dropping of criminal charges against Gordhan, as set forth below. A summons to appear in criminal court on charges of fraud was served ‘on Gordhan, Magashule and Pillay on or about 11 October 2016. This prompted the NGO's Freedom Under Law and the Helen Suzman Page 7 of 42 Ar26. 27. 28. 29, 30. 12 Foundation to address a letter to the NDPP on 14 October 2046, in which the NOPP was informed that the charges were not sustainable in law, as Mr Pillay's retirement was lawful and in compliance with applicable laws and regulations. In addition to setting out the relevant legal principles, Abrahams was informed of my March 2009 memorandum, in which | (acting in my capacity as Executive: Product Oversight in the Legal and Policy Division of SARS, as it was known at the time) had expressed the opinion that the proposed transaction was lawful and proper. A copy of the memorandum was attached to this letter. | attach a full copy of the letter and annexures, including the Memorandum that | authored, dated 17 March 2009 (‘the 2009 Memorandum’), as “VS1”. Abrahams was invited to withdraw the charges, failing which an urgent application was threatened. In response to FUL’s letter, Abrahams invited Gordhan et al to make representations as to why they should not be charged. | understand that Pillay and Magashule’s legal representatives met with officials of the NPA, but that Gordhan declined the offer. Dr Torie Pretorius (“Pretorius”), the NPA official in charge of the investigation and prosecution, was instructed by Abrahams to reconsider the charges in light of the allegations contained in FUL's Page 8 of 42, WY DR31 32, 33. 13 letter of 14 October 2016. Pretorius composed a set of questions to me regarding my 2009 Memorandum. He instructed the Hawks, and in particular Brigadier Xaba of the Organised Crime Unit, to obtain an affidavit from me with the information sought by him. I deal with the events surrounding this Instruction and the manner in which it was communicated, in detail below. On 18 October 2016, the request was conveyed to me (dealt with below). | duly provided Pretorius with the required answers on 20 October 2016. A copy of my affidavit is attached hereto as °VS2". Abrahams also invited the Hawks and other affected parties to make further representations. ‘The withdrawal of charges against Gordhan 34, 35. On 31 October 2016, Abrahams convened a further press conference, in which he announced that all charges against Gordhan, Magashule and Pillay were withdrawn, with immediate effect. ‘A key reason for the NPA’s about-face was, according to Abrahams, that at the time of making the decision to prosecute, the NPA had been unaware of my 2009 Memorandum. Given its contents, Abrahams explained, he was of the view that it would be very difficult for the NPA to prove the requisite mens rea (knowledge of wrongfulness), a necessary element of the charges of fraud. Page 9 of 42 De36, 37. 38. 14 | attach hereto a Media Announcement released by the NPA on 31 October 2016 as “VS3", and make specific reference to paragraphs 27, 28, 29, 31.1.1, 31.1.2, 32, 33, 34 and 36 thereof. In correspondence exchanged between Nilemeza and Abrahams pursuant to this decision, Ntlemeza expressed scathing criticism of ‘Abrahams for his decision to withdraw the charges. In reply, Abrahams queried why the Hawks had not disclosed the 2009 Memorandum to the NPA. Copies of the relevant correspondence (obtained from papers in FUL's application to have Abrahams suspended) are attached hereto as Annexures "VS4-VS7". | am not aware whether Ntlemeza ever responded to Abrahams’ request of 8 November 2016. Itis apparent from the above that: 38.1, The 2008 Memorandum was pivotal in the decision not to prosecute Gordhan et al: 38.2. Abrahams and Pretorius were unaware of the 2009 Memorandum at the time that charges were announced, on 11 October 2016; 38.3. Had they been aware of this document, they would probably not have brought charges against Gordhan et al, relating to the approval of Pillay’s request for early retirement. ‘The events of 18 October 2016 Page 10 of 42 vo ne39, 40. At. 15 A series of bizarre events took place on 18 October 2016. What follows is a brief sequence of key events that are most pertinent to this application As explained above, during mid-October 2016, Dr Pretorius requested the Hawks to obtain further information from me regarding the 2009 Memorandum. The first | learnt of the request, was when my direct manager, Mr Kosie Louw, Chief Officer of the SARS Legal Counsel Division (‘Louw’) phoned me on the morning of 18 October 2016, and required me to attend at his office. Shortly thereafter, | attended at Louw’s office, where he handed to me a bundle of documents consisting of approximately four pages, and advised me that the Hawks would be coming to see me, with a request that | provide my response (in the form of an affidavit) sought by the NPA in connection with the Pillay retirement matter. Al the time | did not count the pages or study the documents in any detail - Louw simply pointed out the NPA letter containing questions for me to answer. The first two pages of the bundle, consisted of a letter from the NPA, signed by Pretorius, which contained a list of questions. This was the document that my attention was focused on. The remaining pages appeared at first glance to simply be the email trail between the NPA, Hawks and SARS, to which the letter had been attached. | paid no further regard to these pages. Page 11 of 4242. 43. 45, 46. 16 This type of request is not unusual ~ in the course of my duties | would regularly provide information and legal opinions and advice relating to litigation on tax-related matters, including matters concerning pension fund law. | am a specialist in this field of law. It was not unusual for SARS to be requested to provide information in affidavit form to the police or NPA, and | readily agreed with Louw's request that | meet with the gentlemen from the Hawks and assist with their queries as a matter of urgency. At approximately 10am on 18 October 2016, | met with four gentlemen who introduced themselves as being senior officers with the Hawks. | recall that one of the gentlemen introduced himself as Brigadier Xaba, and another as Colone! Maluleka (‘Maluleka’). | don't recall the names of the other two gentlemen. They were all dressed in business suits. During this meeting, | was told that the NPA urgently required further information from me regarding the 2009 Memorandum, and that the request related to the recent announcement to charge Gordhan et al with fraud relating to the issue of Pillay’s early retirement. | asked why it has taken so long for them to ask me about the 2009 Memorandum, given the recent media coverage of FUL's application, which included my 2009 Memorandum. Maluleke informed that they had only come into possession of the 2009 Memorandum after the charges were announced, as a result of action by FUL. Page 12 of 4247. 48, 49. 50. 17 | expressed surprise, as the 2009 Memorandum had been in the public domain since approximately 2014, when SARS suspended Pillay on charges relating to his request for early pension. This Memorandum had been circulated within SARS (Legal Counsel Department, Commissioner's Office and HR) at the time, and in the normal course would have been filed in various places, including the Office of the Commissioner, and on Pillay’s HR file. It is likely that Pillay and the office of the Minister of Finance would also have retained copies of the memorandum. Xaba then responded that, in fact, the Hawks had been in possession of the 2009 Memorandum “all along’. At that moment, | did not appreciate the gravity of this remark, as my focus was on attending to the NPA’s questions. In any event, this explanation made sense to me (from a procedural point of view), because in the normal course of any investigation into Pillay's retirement, the 2009 Memorandum would have surfaced from any of the number of sources mentioned above, where it was filed. Xaba informed me that, in addition to the initial questions in Pretorius’ letter, | was required to answer two further questions, which | then appended in manuscript to the end of the NPA letter. | undertook to attend to the query immediately, and estimated that | would be finished with my affidavit by 1pm. Xaba thanked me and said Page 13 of 4251 52. 53. 55. 18 that they would return then to collect it. We all parted ways amicably. | returned to my office to work on the required affidavit. ‘The Hawks left with the understanding that they would meet me at 1pm, when | would provide them with my affidavit. At the end of the meeting, Xaba asked me for directions to Louw's office for the purposes of having a discussion with him. After contacting Louw to confirm his availability fo meet with the Hawks, | asked my secretary Yolandi Els (“Els”) to accompany the Hawks to Louw's office, | later learnt from Els that the Hawks did not follow her alll the way to Louw’s office, but that they were later seen in Moyane’s boardroom. Shortly before 1pm, while working on the affidavit responding to the NPA's questions, | was confronted at my desk by an unidentified man wearing a sult. | had not seen this person before, and assumed that he was an addition to the delegation from the Hawks. I learnt later that he was Thabo Titi (‘Tit’), Moyane's bodyguard. Without any Introduction or explanation, Titi demanded that | hand over the document I had with me. | assumed that his demand related to the affidavit requested from me by the Hawks. | replied that | was not yet finished with my response to the questions, and could not hand back the documents. I then printed my incomplete affidavit, and took it and the questions to the boardroom where the delegation from the Hawks was waiting. Page 14 of 42 fe56. 19 What followed was a bizarre meeting, during the course of which (in summary} 56.1 56.2. 56.3. 56.4. 56.5. Xaba and the other Hawks demanded that | return the documents given to me by Louw earlier that moming, in exchange for @ copy of the same documents (which caused me great confusion); | objected on the basis that | had not yet completed my affidavit in response to the questions (including the handwritten questions appended to the NPA letter); Titi blocked the door to the boardroom, and refused to allow me to leave or to allow people that | had phoned for help, to enter the boardroom; | became agitated and angry — | was totally bewildered as to why the same people who had asked me to respond to the questions contained in the bundle of documents and who had been aware that | had the bundle of documents in my possession since 10am, were aggressively demanding the immediate return of the documents that | required in order to answer the questions; | offered to make a photocopy of the documents, so that | could retain a copy with the handwritten questions (in order to finalise Page 15 of 42 fe56.6. 56.7. 56.8. 56.9, 20 my affidavit). | was told in no uncertain terms that this would not be allowed under any circumstances; The situation escalated to the point that 1 called for my secretary and SARS security for assistance. Tit! refused them access to the boardroom, and | then called 10111 to report that Iwas being held against my will. This elicited no response, after Maluleke informed the officer that | had spoken to, that there was no problem and that the Hawks had everything under control, At some point | began video and audio recording the events using my cell phone. I kept asking why the Hawks wanted the documents back, when | had not finished the affidavit answering the questions in the -NPA letter, At some point Xaba told me that it is not the NPA letter, but the attachments to the letter, that they required to be returned. He offered to hand over his copy of the NPA letter, in exchange for my copy. | was totally confused by this, and (while recording) paged through the documents, to illustrate that they were identical. In doing so, | inadvertently recorded an email which, in hindsight, contains evidence of possible criminal conduct. Page 16 of 4256.10. 56.11. 56.12, 21 ‘At the time though | thought that the attachments to the document were simply the normal email trail to which Pretorius’ letter had been attached. It was only later that | realised the relevance thereof. | deal with this issue elsewhere in this affidavit. At some point Xaba handed me a copy of the Pretorius letter, but unlike the letter handed to me earlier that morning, Xaba’s document did not contain the NPA's letterhead, Pretorius’ signature, or the handwritten questions. These portions had been removed. Xaba wrote a partial telephone number on the header of the document, and told me that | could call him on his cell phone if | had any queries. This was done in an attempt to persuade me to swap my set of documents for his, which made no sense to me because Xaba said that the documents to be exchanged were Identical. | was extremely upset and suspicious at this point, and refused to do so. Eventually, Louw and two other SARS colleagues joined the meeting, and the Hawks were asked to leave the room, which they did (Titi remained in the room). Louw attempted to calm me, and suggested that ! comply with the Hawks' request. | told Louw that | had not yet finished my affidavit, and thus could not be expected to hand back the documents at that stage. Louw accepted my explanation, and endeavoured to convince the Page 17 of 4222 Hawks to copy the document, so that | could finish. They refused. 56.13. | complained to Louw that I had been held against my will, and that the gentleman from the Hawks who was still standing at the boardroom door, had been blocking it all along. Louw then informed me that this was Titi, Moyane’s bodyguard and a SARS employee. 56.14, Titi denied that he had prevented me from leaving. | then approached the door, and Titi (for the first time) stepped aside. As | stepped out of the boardroom, the Hawks all grabbed me, twisted my arm and hand, and wrestled the documents from my hand. They then left with the documents, having returned my unfinished affidavit and 2009 Memorandum (which were in my hand when they grabbed me). 56.15. Needless to say, | was extremely upset and traumatised by what had transpired. | had no idea why the Hawks had demanded return of the documents, to the point of holding me against my will and assaulting me, or why my employer had not objected to this conduct and protected me. 57. After the traumatic incident on 18 October 2016, | was left with the letter given to me by Xaba, a copy of which is attached hereto as “VS8". Page 18 of 42, ) Dn58. 59. 60. 61. 62, 23 On or about 19 October 2016, the Hawks sent Louw a duplicate list of the questions posed by the NPA, on a Hawks letterhead, and now addressed to Moyane. This letter contains an additional question. | received it from Louw on 19 October 2016. A copy of this document (dated 18 October 2016) is attached hereto as “VS9". | queried the differences between the NPA and Hawks letters with Louw, who provided guidance as to how | should deal with the questions. | attach email correspondence in this regard hereto as “vS10" | was concemed that Pretorius would not be aware of the incident or why my reply was taking so long, On 19 October 2016 | sent an email to Moyane and Louw, setting out my concems in this regard. On 20 October 2016, | sent an email to Pretorius, containing a summary of the events of 18 October 2016, so as to explain the reason for the delay. A copy of the email trail is attached hereto as "VS11". | did not receive a reply from Pretorius. On or about 20 October 2016, | completed the affidavit containing my responses to the questions posed by the NPA. A copy of this affidavit is attached hereto as "VS2". The affidavit was duly sent to the NPA. ‘On 28 October 2016, | sent an email to SARS Media (copied to Louw and Moyane), in which | copied an article from the TimesLive website, quoting a statement by a Hawks spokesman on the incident, in which it Page 19 of 4263. 24 was alleged that | was in possession of documents that | “was not meant to have", which were then removed from me. In this email, | again reiterated my confusion with Moyane's explanation (and that of the Hawks), stating: “... why would the NPA, who demanded answers in the first place, suddenly want the document with the questions they wrote back?? It simply, like everything else, makes no sense." | also confirmed in this email that | had not provided or leaked any information regarding the events of 18 October 2016, to the media. | hereby confirm this statement under oath. A copy of the email Is attached hereto as “VS11A". The first protected disclosure - IPID 64. 65. 66, As a senior government official, with 25 years’ service in SARS, | had never experienced or heard of anything like what happened on 18 October 2016. | had received conflicting and confusing exolanations from Moyane as to the incident, and in particular the role played by Titi. | indicated this confusion (and my confusion and suspicion about the entire incident) in emails to Moyane and Louw at the time. | did not receive satisfactory answers or explanations, although Moyane did apologise to me for the incident. As the events had clearly taken place at the behest of a Brigadier in the Hawks, | decided to report the matter to the Independent Police Page 20 of 42 DR67. 68, 69, 25 Investigation Directorate ("IPID"). | did so after informing Moyane and Louw of my intention to do so, and after receiving a response from Moyane that did not address my concerns. | attach copies of the email trail hereto as “VS12", On 21 October 2016, | sent an email to Mr Robert McBride, head of IPID (‘McBride"), setting out a summary of the events of 18 October 2016, and inquiring as to whether IPID could assist. McBride responded in the affirmative, and shortly thereafter | met with investigators from IPID, and provided them with a full statement, together with access to the audio and video recordings on my cell phone. | attach a copy of the relevant email trail as “VS13", and copies of my two statements under oath as "VS14" and “VS15" respectively. The purpose of deposing to a second statement was to expand on certain issues, at the request of the appointed IPID investigator. The electronic evidence provided includes video footage of the documents, including the email trail indicating that, instead of forwarding the email from Pretorius directly to SARS, Xaba sent it to an attorney in private practice, who then forwarded it to Moyane, with a highly suspicious statement that he could not be involved any further for ethical reasons. A screenshot of this document is attached hereto as “vsi6". | assert that the disclosure of information to IPID, and in particular the video images of this particular email, constitute a protected disclosure Page 24 of 4270, 71. 26 for purposes of the PDA. | also assert that my disclosure to IPID of the conduct of the Hawks and Titi on 18 October 2016 (as set out above) constitute protected disclosures. IPID duly investigated my complaints, and recommended to the NPA that charges be brought by the NPA against Titi and the Hawks. To date no prosecutions have happened, and | am concerned that the prosecutions will not be brought due to possible political interference. | am advised that the prosecutor charged with prosecuting these individuals has recently had his office burgled and laptop stolen. ‘The second protected disclosure — IPID and NPA 72. 73. During the course of the IPID investigation, | was requested by the IPID investigating officer, on the instruction of the Director of Public Prosecutions (an employee of the NPA), to provide a further statement under oath as to the events of 18 October 2016, and surrounding events. | duly deposed to a supplementary affidavit on 14 December 2016, and submitted it to IPID. A copy of this affidavit (without annexures) is attached hereto as “VS17". | pray that the content of my supplementary affidavit be read as if specifically incorporated herein. | will briefly highlight the most pertinent aspects thereof: 73.1. | set out further details as to the critical email attached to the documents presented to me by Xaba on 18 October 2016, Page 22 of 4274, 73.2. 73.3. 73.4. 73.5, 27 which indicates that Xaba forwarded the questions from Pretorius to D Maphakela of M4 Attorneys, and not to SARS; Maphakela in tum forwarded the email to Moyane and Mr Mokoena (also from SARS) with the message, On ethical reasons, | cannot be involved in this one, as | hold a different view to the one pursued by the NPA and Hawks.” This is the document that Xaba wanted so desperately to retrieve from me, to the point of holding me against my will, and assaulting me to remove the document from my hands by force. | also point out that Titi, Moyane’s bodyguard, acted in cahoots with Xaba and his men on the instruction of Moyane, in their efforts to remove the documents (containing the incriminating email) from me. | also record that during the initial meeting with the Hawks on 18 October 2016, Xaba told me that the Hawks had been in possession of the 2009 Memorandum “all along’. This statement by Xaba, understood in light of the prosecution against Gordhan et al, indicates that the Hawks probably deceived the NPA by deliberately withholding exculpatory evidence (the 2009 Memorandum), which, when it was brought to the attention of the NPA, resulted in the withdrawal of the charges. Page 23 of 42, / R75. 76. 28 It Is further likely that SARS, the complainant in the fraud case, was similarly aware of the existence and content of the 2009 Memorandum when the complaint was made against Gordhan et al. As pointed out above, the 2009 Memorandum would have been filed in various places within SARS itself. The disclosure to IPID and the NPA of this evidence of criminal conduct amounts to a ‘protected disclosure’ in terms of the PDA. The third protected disclosure ~ The grievance against Ti 77. 78. 79. 80. On or about 20 October 2016, | met with Moyane to discuss the events of 18 October 2016. Moyane expressed regret and sympathy for what had happened to me, and explained that Tit’s conduct was simply to ensure that no copies of the NPAs letter were made. This explanation made no sense to me, and on 21 October 2016 | addressed an email to Moyane, setting out the reasons why | thought this explanation to be unlikely. Moyane responded to my email, to state that the Hawks took their document from me. | responded to dispute this point. A copy of the email trail has been attached hereto as “VS12". | was not satisfied with the explanation provided to me, and | submitted a formal grievance against Titi on or about 27 October 2016. A copy of the grievance and statement attached thereto is attached as “VS18". ‘On 10 November 2016, Louw addressed an email to me (copy attached as "VS19'), stating as follows: Page 24 of 42Bt 82, 83. 29 “HR discussed the above matter with me today. In light of the fact that the Commissioner has instituted an investigation into this matter and the fact that these matters overiap, the view is held by HR that it would be more appropriate to first finalise the investigation into this matter before addressing or continuing with the stage 1 grievance process.” SARS HR then informed me that an independent firm of attorneys would investigate my grievance. | complained as to the appointment of the suggested attorneys, as I was part of the SARS team looking into this firm’s involvement with the so-called Panama Papers scandal. In response, Ngwako Raphalo of SARS HR (“Rapholo") informed me as follows: “Kinaly be reminded that this investigation is conducted in line with the grievance code and procedure purely to establish the facts around the incident you raised in your grievance [sic] nothing else Allwe are doing is trying to afford interested parties an opportunity fo_preseni_their version of events surrounding your grievance. Once the facts are established these will be presented to the organisation which will then decide on appropriate action to take.” (My underlining) Copies of the relevant emails are attached hereto as “VS20". Page 25 of 42,30 The investigation into my grievance 84. 85, 86. 87. Pursuant to my complaint about attorneys that SARS initially proposed, SARS appointed Mr Thipe Mothie ("Mothle") of Mothle Jooma Sabdia Attorneys to conduct an investigation into my grievance against Titi. A copy of the letter from Mothle setting the terms of reference of the investigation is attached hereto as "VS21". (I have redacted the name of the firm of attorneys whose appointment | objected, in order to protect taxpayer's confidentiality). | had no objection to his appointment, and responded hereto in an email attached as “VS22", wherein | confirmed that the terms of reference of the investigation were confined to my grievance. | participated fully in the investigation, and provided Mothle with copies of my audio and video recordings of the events of 18 October 2016. | also attended an interview, where | was asked to provide a full account of the events of 18 October 2016, which | did. During the interview | was not asked to take the oath, and was not cross-examined. Mothle merely asked some questions for clarification. | understand that Titi and other witnesses were also interviewed by ‘Mothle. | made several inquiries as to the status of the matter, and was told that the investigation was still underway. On 11 May 2017, | received an email from Rapholo, attached to which was a report from Mothle dated 30 March 2017 (‘the first report). Page 26 of 42 No88, 89. 90. 31 Rapholo requested that | study the report in preparation for a meeting to be held in due course, where the findings and way forward were to be discussed. | attach a copy of the email and the report hereto as "VS23". In the covering email, Rapholo (correctly) described Mothle’s terms of reference as follows: “The investigator's terms of reference were to probe the allegations and make the recommendations to the organisation as to how to address them.” | considered the conclusions and recommendations contained in the first report to be fair. | was exonerated of wrongdoing, while it was recommended that action be taken against Titi for intentionally blocking the door to the conference room, thus preventing me from leaving the room. The final conclusion in the first report was that it was recommended that a stage 3 grievance hearing be convened, in an attempt to resolve the grievance. | had no complaint with this recommendation, and awaited further feedback from HR to set up the meeting. No such meeting or feedback occurred, ‘On 9 June 2017, Rapholo sent an email to me, copied to Titi and others (attached hereto as “VS24’), stating as follows: “My email of 11 May 2017 attaching the report from Mothle Jooma Sabdia Attorneys refers. Page 27 of 4291. 92. 32 You will recall that the report had recommended that @ grievance hearing be called to test the versions that were presented. SARS Is of the view that the investigators are seized with all relevant information and evidence for them to provide a conclusive report on the entire incident elucidated in your grievance, without the need to conduct a grievance hearing. The investigators have thus been requested to provide a conclusive report on the incident based on what was presented to them during the interviews conducted with yourself and all parties involved in the incident. Deliberations will then be conducted on the report containing all these final conclusions. You will be informed as soon as such report is delivered.” | did not fully appreciate the significance of this email at the time, and did not respond to it. | heard nothing from Mothle or anyone else about any further investigations. My understanding was that, due to the clear views expressed in the first report, Mothle was required to provide further guidance to SARS as to the charges to bring against Titi. I heard nothing further on this issue until 25 July 2017, when Rapholo sent an email to myself and Titi (copied to others), to which was attached an “Addendum report” from Mothle. Copies of the email and Page 28 of 4233 Addendum report are attached hereto as “VS25". In the covering email, Rapholo stated as follows: “Dear Viok and Thabo I had indicated in my mails to you that [sic] the Thipe Mothle of Mothle Jooma Sabdia Attorneys was requested to provide a conclusive report on all findings related to the incident that gave rise to the grievance. He has now concluded that exercise and has provided his addendum report with recommendations to the organisation. A copy of this addendum report is attached, The report has been considered by the organisation which has elected to accept the findings and recommendations made. Key amongst the recommendations was that charges be brought against both of you for possible misconducts highlighted in the report, Due to the dynamics involved in this matter it has been decided that the disciplinary process be run by external parties. An external chairperson as well as external initiator will be appointed to conduct the process. Details of the proceedings will be shared with you by your HRBP [Human Resources Business Practitioner] once the parties are appointed.” 93. This came as a complete surprise to me. Not only had the terms of the investigation clearly been expanded, but, as is apparent from the Page 29 of 4294. 95. 96. 34 introduction to the Addendum report, SARS had unilaterally approached Mothle on 24 May 2017 with instructions on extending the mandate to investigate my conduct, insofar as it evidences an apparent breach of the employer/employee trust relationship. (Addendum report, para 1.4.1). This far exceeds the terms of Mothie’s original mandate, which was to investigate my grievance and to make recommendations. This expanded mandate was never communicated to me, and | was never provided with an opportunity to make any representations in respect of allegations against me. It beggars belief that the original mandate included an instruction to analyse the content of the audio and video evidence presented by me, "_. fo establish the true intent of the protagonists (Symington and Tit), and the actual underlying circumstances and associated nuances of the incident’. (Addendum report, para 1.4.2.) | aver that it contained no such mandate. Clearly, SARS instructed Mothle to come up with charges against me, after the first report exonerated me and concluded that there was merit to my grievance against Titi, and that he should face disciplinary action, This was framed as a ‘misinterpretation’ of the original instruction, giving rise to an Addendum report, which was aimed squarely at establishing a basis for pursuing misconduct charges against me. Page 30 of 42 y) J97. 98. 99. 100. 35 Up until that moment, | had been the only party to the incidents of 18 October 2016, to file any complaints or grievances. No complaints whatsoever had been made against me by Titi, Moyane, Louw, or anyone else at SARS, | was not under investigation for any misconduct whatsoever — | in fact was the victim of unlawful detention and assault on 18 October 2016. It is further evidence of a witch hunt against me that | was never informed of the “expanded” mandate to Mothle {to the extent that it could implicate me); | was never given an opportunity to make any submissions or to provide evidence in this regard, and | was effectively condemned without a hearing, in circumstances where SARS indicated it regarded the findings in the Addendum report (but not the first report) as binding. The contents and conclusions reached in the Addendum report differ so starkly from the first report, that the inference can be drawn that the reports cannot both amount to the honest professional opinion of an independent attomey. The most reasonable inference is that Mothle was placed under pressure by SARS to incriminate me in the Addendum report, and that, based on exactly the same evidence, Mothle dishonestly performed an about-face in the Addendum report. Mothle’s Addendum report contains damning findings against me, Including the conclusion (directly opposite to the conclusion reached in the first report) that Titi in no way prevented me from leaving the Page 34 of 42101, 102. 36 boardroom. Mothle recommended that | be charged with insubordination, use of a profanity, bringing SARS into disrepute, and that (although It formed no part of their mandate or investigation), | was the prime suspect in leaking the audio and video recordings to the media, With regards to the insinuation in the Addendum report that | leaked any information (including the audio and video recordings of the incident) to the media, this is strenuously denied. | never sent any information or recordings to any member of the media. | only sent it to IPID, and to Mothle attorneys (as part of the investigation). | have subsequently provided the recordings to my attorneys. | do not know who leaked the recordings to the media. | attach hereto (as “VS26") a few examples of email correspondence indicating that | refused all questions or requests for interviews (or recordings) from members of the media, and referred all such queries to the SARS Media office, as per the relevant SARS protocol. |_am_being subjected to_an occupational detriment, and_am likely to_ suffer further occupational_detriments, as_a result of _having made the protected disclosures 103, On 29 August 2017, | received an electronic diary invitation to attend a meeting with the subject matter “Notice of Disciplinary Hearing’. The meeting commenced at 2:30pm, and was attended by Ms Refiloe Page 32 of 42104. 105. 106, 37 Mokoena ("Mokoena"), SARS’ Chief Legal Officer (who replaced Louw on his retirement) and my direct superior, and Mr Million Mbatha (‘Mbatha”) of SARS Human Resources. I was handed a document titled “Notice of Disciplinary Hearing’, in which | am notified of charges of misconduct against me arising from the incidents described above, and clearly based on the recommendations in the Addendum report. | attach a copy of the notice hereto as “VS27". In response to a question by myself, | was advised by Mokoena that she played role in the decision to charge me with misconduct. Mbatha told me that the instruction came directly from Moyane himself. Out of the blue, and without any complaints or grievances against me, | now face the prospect of a disciplinary hearing, and probable dismissal from SARS. \ firmly believe that the reason for SARS seeking to find a basis to charge me with misconduct, is directly linked to the protected disclosures that | have made, as described above. Given my seniority within the organisation, and the broader political ramifications, | strongly suspect that the effort to get rid of me must be sanctioned at the highest levels of the organisation. This suspicion is confirmed by the fact that Moyane himself (and not my line manager, as is the norm) ordered that disciplinary charges be brought against me. Page 33 of 42107. 108. 109. 110. 38 As demonstrated herein, it is probable that: 107.1. SARS and/or the Hawks were fully aware of the 2009 Memorandum, long before 11 October 2016; 107.2. SARS and/or the Hawks deliberately concealed this evidence from the NPA, probably so that charges would be brought against Gordnan, thus providing a solid pretext for his removal from the Finance Ministry; 107.3. SARS, as complainant in the charges against Gordhan et al, seem to be involved. Moyane is the deponent to the complaint, ‘on behalf of SARS; 107.4, | made protected disclosures in respect of this issue; 407.5. I now face a disciplinary hearing likely dismissal as a result. It Is for this reason that | seek the declaratory relief in the notice of motion. | am advised that | am protected in terms of the PDA, from such occupational detriments. It is for this reason that | seek interdictory relief, preventing SARS from subjecting me to any such occupational detriments. On the advice of my attorneys | have submitted an unfair labour practice to the CCMA, in which | complain that the Addendum report constitutes an unfair labour practice against me. | attach hereto a copy Page 34 of 42111, 112, 39 of the referral form. The matter has been set down for conciliation, but clearly SARS is intent on proceeding with the disciplinary process against me. However, while | will continue to pursue my remedies for unfair labour practice, | am advised that the CCMA cannot grant relief of the nature sought in this application. It is for this reason, and in order to obtain effective relief, that this application has been brought, | believe that | inadvertently find myself at the centre of the political storm surrounding Minister Gordhan, and the broader issue of State Capture, given that: 112.1. | was the author of the 2009 Memorandum, which expressed the legal opinion that Pillay's early retirement request was not irregular or unlawful; 112.2. This memorandum was not disclosed to the NPA, prior to the decision taken to charge Gordhan et al. with fraud related to Pillay’s early retirement; 112.3. It appears that the non-disclosure of this memorandum was the result of deliberate conduct by the Hawks and SARS; 112.4, Abrahams has publicly stated that this memorandum renders it all but impossible to prove the charges of fraud, and that it formed the basis of his decision to withdraw the charges against Gordhan et al on 31 October 2016; Page 35 of 42113, 114, 115, 40 112.5. It follows that, unless the 2009 Memorandum was hidden from the NPA, it would not have been possible to persuade prosecutors to bring the charges against Gordhan et al. The likelihood of a conspiracy within elements of the Hawks (and possibly within SARS) to defeat the ends of justice by seeking to manipulate the investigation process, is amplified by the contents of the ‘email, attached to the questions from the NPA, that was accidentally handed to me on 18 October 2016, and which led to the events of that fateful day, described above. With the benefit of hindsight, it seems that this email was considered so explosive as to warrant my unlawful detention and assault in order to retrieve it from me. The contents of the email are suspicious, and appear to implicate various persons in potential wrongdoing related to the charges against Gordhan et al. This increases my concer that | am being targeted for retribution for my role in bringing this email to the attention of IPID, particularly considering Brigadier Xaba’s statement to me (recorded in my affidavit to IPID and the NPA) that the Hawks had been in possession of the 2009 Memorandum for some time prior to October 2016. In summary, | was handed a document and involved in an incident that raise the spectre of collusion by senior government officials and police officers, in efforts to discredit Gordhan. | made disclosures regarding the document and incident to my employer, IPID and the NPA, as a Page 36 of 4241 result of which | now face trumped-up charges of misconduct, a disciplinary hearing and dismissal from SARS. 416. Given the stakes and the powerful positions occupied by the protagonists, | require the full protection of the law against occupational detriment, or criminal or civil liability as a result of having made protected disclosures. The relevant provisions of the PDA on which I rely 117. Section 1 of the PDA defines a ‘protected disclosure’ as follows (relevant portions quoted): “‘disolosure” means any disclosure of information regarding any conduct of an employer, or an employee of that employer, made by any employee who has reason to believe that the information concerned shows or tends to show one or more of the following: (a) That a criminal offence has been committed, is being committed or is likely to be committed; (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which that person is subject; (0) that a miscarriage of justice has occurred, is occurring or is likely to occur; (9) Page 37 of 4242 that any matter referred to in paragraphs (a) to ( F) has been, is being or is likely to be deliberately concealed,” 118. Section 3 of the PDA provides that "No employee or worker may be subjected to any occupational detriment by his or her employer on account, or partly on account, of having made a protected disclosure.” 119. An ‘occupational detriment’ is defined as: “(a) being subjected to any disciplinary action; (2) being dismissed, suspended, demoted, harassed or intimidated; (h) being subjected to any civil claim for the alleged breach of a duty of confidentiality or a confidentiality agreement arising out of the disclosure of— (a criminal offence; or (i) information which shows or tends fo show that a substantial contravention of, or failure to comply with the law has occurred, is occurring or is likely to occur; {) being threatened with any of the actions referred to in paragraphs (a) to (h) above; or @) being otherwise adversely affected in respect of his or her employment, profession or office, including employment opportunities, work security and the retention or acquisition of contracts to perform work or render services;” Page 38 of 42120, 121. 122. 43 In terms of section 4 of the PDA, an employee subjected to an actual or likely occupational detriment, may approach a Court for appropriate relief, including an order that the employer take steps to remedy the occupational detriment. | am advised that the High Court has jurisdiction to determine the matter. The relief | seek in the notice of motion will serve to remedy the imminent occupational detriment that | face. | aver that | made the disclosures desoribed above to my employer (specifically to Louw, Moyane and HR) relating to the unlawful conduct of the Hawks and Titi: 121.1. In good faith, and in the bona fide and reasonable belief that they were true; 121.2. In accordance with section 6 of the PDA, by communicating directly with Louw and Moyane, and by following the SARS grievance procedure in relation to the complaint against Titi; 121.3. In accordance with section 5(a) of the PDA, insofar as it relates to Louw, who at the time was the most senior legal officer within SARS, and my direct manager; | aver that | made the disclosures to IPID and the NPA as described above: 122.4. In good faith and in the bona fide and reasonable belief that they were true; Page 39 of 4244 122.2, Having exhausted internal remedies (where such remedies were available, and in this regard | note that | informed my employer of my intention to report the conduct of the Hawks on 18 October 2016 to IPID, and received no negative response); 122.3, In good faith, and in the bona fide and reasonable belief that IPID and the NPA were the appropriate bodies to make the disclosures to, given the nature and content of the disclosures, and the exceptionally serious nature of the impropriety complained of. 123. Accordingly, | am advised and submit that these disclosures are protected in terms of section 9 of the PDA. Urgency 124. | bring this application on an urgent basis, for the following reasons: 124.1. The relief sought is inherently urgent; 124.2. Ihave been charged with misconduct arising from the incidents giving rise to the protected disclosure. | am concemed that if | don't obtain urgent relief, | will face likely dismissal before the matter is heard by the Court. In that event, any relief granted in the normal course will not cure the harm already suffered by me. Page 40 of 42125. 124.3, 124.4. 45 SARS has previously acted swiftly and harshly against senior employees, on related matters. As an example, | mention that Pillay was suspended on very short notice during November 2014. He subsequently challenged his suspension in the Labour Court, and was successful. Upon his reinstatement he was immediately suspended again. [have no faith in the faimess of the SARS disciplinary process — clearly there is a concerted effort underway aimed at dismissing me (end discrediting my version of events), The manner in which my legitimate grievance has been twisted into charges of misconduct against me, further supports my scepticism about the fairness of the process that I will be subjected to if urgent relief is not granted. lam advised that my attorneys have set the dates for the hearing of the matter in accordance with this Court's practice manual, and have provided fair time periods in which SARS is called upon to respond, given the date set for the disciplinary hearing, Conclusion 126. Ihave served my employer faithfully for the past 27 years. | wish to continue my distinguished career at SARS as a public servant. | believe | have expertise in my field which is valuable to SARS, and intend to continue service with SARS. Page 41 of 42 LR46 127. 1 do not seek or expect any monetary reward for bringing this application, | merely seek to protect my employment with SARS. 428, _ In the circumstances | pray for an order in terms of the notice of motion DEPONENT | hereby certify that the deponent has acknowledged that he knows and understands the contents of this Affidavit which was swom to before me at SANDTON onthis the day 0"! cof AUGUST Zor? in accordance with the Regulations of Government Notice R.1258 dated the 21st July 1982 (as amended). A be COMMISSIONER OF OATHS DANI BERMAN. osNeY Page 42 of 4247 WEBBER WENTZEL : inane wih Linklaters s/S\ ‘Shaun Abrahams ‘20 Alvonia Road, Sondton Natlonal Director of Public Prosecutions ohannestury, 2396 National Prosecuting Authority : 5 80 17, Yate Victoria and Grifiths Mxenge Building (Comer Westlake & Hetiley) “henesu 2307, Seu Mca 123 Westiake Avenue Docex 26 Johannesburg Weavind Park, Silverton 1427 11 5905000 vn FOP Sait 0184 www wrebberwentzel.com JP Pretorlus 8C 4 Acting Special Director of Public Prosecutions Priority Crimes Litigation Unit Nabonel Prosecuting Authority URGENT Victoria and Griffiths Mxenge Bullding (Corner Westlake & Hartley) 4123 Westlake Avenue Weavind Park, Silverton Pretoria 184. By hand By email: [email protected]; [email protected] By fax: 012 843 2220 You reference Ourreference Pato Surmone Ko S748 Yiovshavich /P Reta /D Cron | 44 October 2016 Brooklyn DRaflrty/T Dye 427/0512015 sovzear >. Dear Sirs Summons in criminal case against, infer alfos, the Honourable Minister of Finance Mr Pravin Gordhan: Summons 574/16; CAS: Brooklyn 427/08/2015 4. We act for Freedom Under Law NPC and the Helen Suzman Foundation, non- governmental organisations concerned with, amongst other things, the prometion of the rule of lav and the protection of our csnstitutional project (“our clients"), enter Pargert C8 Manosing Parner 52 Hutea Parnes 8B Aen NG lp Amped A Apoubaom Ae seapee OM Boson Emiowey'"fesatston Be bat cb, Shawne Mee recite cunan eves Meter Rogie Beis PM Baybee nur Bde ng Bula ret Gk eye nar Wiauprne Coes te SRedionccor se Ceehsehnintent A eau ha Te tormas Gant fm Sant =) meu Wcaaan lane FOC hair mPa Pt thong Ya He cry clay ald na ry A ao as ed Bic iaslace Hla Wehuoua” Ceteye Mike ‘Aber D'hinAPbnpanents. JNodm Yoaawrch Meese Speer ma tesa fad ole rope cy i hee Eure a “Sityer oemjuny foen” SUAAD OC Rian. eater Ich Neheyer, ND Stare — cone os Hembaneonps: Mange Saat a Saige ad Waa HW atacal Ong Saeed ATBokr ATi Veue seyderhime Paneer ak me o7ksrefinin even ue 8 2 evcnlea one Sieson48 WEBBER WENTZEL ~ a 68 6 estan 9 Linklaters Page 2 We address this letter on behaif of our clients acting in their own end In the public interest, On 11 October 2046, summons no, 674/16 was served on, inter allos, the Honourable Minister of Finance, Mr Pravin Gordhan, MP. In terms of annexures A, B and E thereto (’the charge sheet’), the Honourable Minister Is charged wit 4 fraud, altematively thefi, in relation to the alleged payment by the South African Revenue Service ("SARS") ‘to the Government Employees" Pension Fund (‘the Fund’) of R1,141,178.11 on behalf of Mr Visvanathan Pillay, where such sum was allegedly a penalty payable by Mr Pillay fo the Fund (count 1 end the alternative fo count 1 of the charge sheet); and : 2 fraud in relation to the re-hiring of Mr Pillay in or around April 2014 (count 4 of the charge shest), (collectively, "the charges"). ‘As prefaced In our previous correspondence, your conduct in pressing baseless charges against the Ministar of Finance has, and continues to have, devastating consequences for the Republic and its economy. This Is & matter of paramount public lnferest and our clients intend to review and set aside your decisions to Institute the charges agalnst the Minister of Finance, under the constitutionel principle of legality and otherwise, unless you withdraw the decisions or furnish @ cogent basls for the actions faken, It has been held In ‘a long fine of cases that our clients have standing and en interest to bring such proceedings. ‘The charges, such as they are, are unsustainable in law and fact, and may be actuated by ‘conscious recklessness of ulterior purposes on the part’ of the National Prosecuting ‘Authority ("NPA"). In respact of charge 1 (fraud, alternatively theft), we note the following: 4 Mr Pillay was clearly entitled under the relevant legislation governing public servants’ retirement fo retire from the age of 55, This was an Integral part of his comployment relallonship with the South African Revenue Service ("SARS"), 2 in terms of the Rules of the Government Employees Pension Fund (‘GEPF" _... chowever, -2-retirement-before- 60-years-of-age constitutes retirement prior tothe:49 WEBBER WENTZEL ‘natana in > Linklaters 83 a sa2 8.3.3 Pages pension retirement date and @ penaliy (by way of a deduction) would normally be applicable to the payout on such early retirement. All the relevant legislation, however, proves for thal penalty or deduction to be paid by SARS or the Government of the Republic of South Africa: Rule 20 of the Rules to the Government Employees Pension Fund Law, 1996, ('GEPF*) slates that "Compensation to the fund on retirement or discharge of a member prior to attainment of the member's pension retirement date, Without détracting from the generality of section 17(4) of the Law, the Government or the employer or the Govornment and the employer shall, if @ member, except for @ reason In rule 14,1.1(@), retires, becomes entitled in terms of Rule 14.8 to the pension benefits in terms of @ severance package, referred to in that Rule, or Is discharged prior io his or her pension retirement dato and at such retirement, entitlement or discharge in terms of tho rules becomes entitied fo the payment of an antuity or gratuity or both an annuity and @ gratuily in terms of the rules, and arty of these actions result in ‘an additional financial llabiity to the Fund, pay fo the Fund the additional financial obligations as decided by the Board acting on the advice of the actuary. Such payment to the Fund, with Interest fo account for any delay in payment, shal be in accordance with a schedule epproved by the Board." Seotion 17(4) of the Government Employses' Pension Fund Law, 1996, which states that: "if any action taken by the employer or if any legislation adopted by Perliament places eny additional financlal abligation on the Fund, the employer or the Government or the employer and the Government, as the case may be shall pay to the Fund an amount which Is required fo meet such obligation’; Government Employees Pension Fund Members’ Gulde, page 34, which reads "Where the employer granted permission for your early retirement, your benefits vil not be scaled down, However, your employer will pay an additional liability.” pPaiesinisstisseasnieninenane? {n light of the above alone, the charges are unsustsinable,