Pretoria – South African Revenue Service (SARS) legal expert Vlok Symington, in a bid to have disciplinary proceedings against him stopped, has told the High Court in Pretoria that he should be protected as a whistleblower.
Symington has previously made what he has described as "protected disclosures" to police watchdog Ipid and the National Prosecuting Authority relating to fraud charges against former finance minister Pravin Gordhan by the Hawks.
These charges were eventually withdrawn.
Symington brought an urgent court application against SARS to prevent what he called an “unfair” dismissal after the revenue service informed him it would institute disciplinary actions against him for apparent misconduct.
The charges against Symington relate to an incident in October 2016, where he was allegedly held hostage by SARS commissioner Tom Moyane’s personal bodyguard and several Hawks officers, and forced to hand over emails.
Protected disclosures
The charges include gross miss-conduct, insubordination, use of foul language and bringing the name of SARS in disrepute.
In the Pretoria High Court on Thursday Advocate David Unterhalter ,SC, for Symington, said the case did not concern whether Symington would get a fair hearing, but rather that he should be protected under the Protected Disclosures Act (DPA).
He said that, according to the act, Symington had made a protected disclosure.
Symington should therefore enjoy the protection granted to whistleblowers, as it was a statutory right identified by the Supreme Court of Appeal. “No employee or worker may be subjected to occupational detriment for making a protected disclosure,” Unterhalter told the court.
Advocate Kameshni Pillay ,SC, for SARS, argued that the disclosures made by Symington did not fall under the DPA as they had been widely reported. He added that the disclosures had to be based on solid fact and not speculation, also noting that the Hawks were not employees of SARS.
Pillay also told the court that at the time SARS decided to charge Symington, the revenue service was unaware of the disclosures.
“The applicant (Symington) gave no evidence that the respondent (SARS) was aware of the disclosures that he made,” she added.
Pillay also argued that Symington did not suffer any occupational detriment because of the disclosures he made, and that he was not being charged for disclosing information. “It is evident that (the) applicant is facing a disciplinary inquiry because of his conduct and demeanour on 18 October 2016.”
Unterhalter fired back by saying what was in public domain included only certain aspects of what had transpired, and did not include detailed information that was contained in the disclosures.
Judge Hans Fabricius asked Pillay whether SARS would consider a stay in the disciplinary hearing to give him more time to make a judgement. Pillay agreed that SARS would wait for his judgement.
Judgement was reserved.
