Vlok Symington, the senior SARS legal expert who claims he was held hostage by SARS commissioner Tom Moyane’s bodyguard and members of the Hawks last year, has lost his legal battle to stop his disciplinary hearing.
Symington claimed the court should protect him as a whistleblower against what he believed was his imminent dismissal and that he was the victim of a witch-hunt, but Judge Hans Fabricius today dismissed his application with costs, saying his disclosures had nothing to do with his proposed disciplinary hearing.
Symington wanted to stop his disciplinary hearing pending further legal action to have some of the disclosures he made to, among others, the Independent Complaints Directorate (IPID) and National Prosecuting Authority (NPA) declared as protected disclosures in terms of the Protected Disclosures Act.
He accused Moyane of instigating disciplinary charges against him in revenge for his role in having criminal charges against former finance minister Pravin Gordhan withdrawn.
“I believe I inadvertently find myself at the centre of the political storm surrounding Minister Gordhan and the broader issue of state capture,” he said in court papers.
Symington also pointed the finger at Moyane as the man who had laid criminal charges against Gordhan, although Moyane later denied it, but Judge Fabricius found that this issue was also irrelevant to Symington’s disciplinary hearing.
Symington signed off on an internal memorandum in 2009 that led to the NPA’s withdrawal of criminal charges against Gordhan.
He claimed in court papers SARS, Moyane and the Hawks were aware of the memorandum all along, but deliberately hid it from the NPA and they were involved in a conspiracy to manipulate the investigation against Gordhan and the then deputy SARS commissioner Ivan Pillay.
The judge said it was clear that Symington was charged with insubordination, refusal to obey lawful instructions, unbecoming conduct, using abusive and insulting language and aggressive conduct because of his own conduct during the so-called hostage situation in a SARS boardroom on 18 October last year and the grievance he lodged himself.
He was also charged with bringing the image of SARS into disrepute by sharing video footage he made of the incident, resulting in it being broadcast on public media.
He only made the alleged protected disclosures after the incident.
Symington became embroiled in an altercation with Moyane’s bodyguard Thabo Titi, members of the Hawks and other SARS employees when he refused to hand over certain documentation in his possession.
The judge said SARS’s assertion that Symington was “inclined to melodrama was borne out by his assertion that he was ‘subjected to unlawful kidnapping’”. He said it was clear that everyone in the boardroom had conducted themselves in a “less than dignified manner” and there were conflicting versions about what had actually happened.
Symington’s defence that his conduct had been reasonable because he had been unlawfully kidnapped, intimidated and assaulted ought to be put before the disciplinary hearing, he added.
Judge Fabricius said in his view the events of 18 October “ought to have been settled with a handshake and a discussion over a beer”. Titi had been prepared to accept an apology while Symington insisted he should be fired.