Former Constitutional Court Justice Zak Yacoob also called and “rebuked” Sikhakhane after his preliminary report was leaked to the media, something the advocate found “inappropriate and disappointing”.
This is according to an email Sikhakhane penned to retired Judge Robert Nugent, who headed the Nugent Commission into tax administration and governance at the revenue agency in October last year which Sunday Independent obtained this week.
Sikhakhane confirmed writing to Nugent but declined to comment further.
His email comes amid a public fallout between Public Enterprises Minister Pravin Gordhan and Public Protector Busisiwe Mkhwebane, who made adverse findings against the former Sars commissioner in her report into the rogue unit released last week.
In the email, dated October 1 2018, Sikhakhane did not mention names but Sunday Independent has established that “an editor of a Sunday newspaper” and “a former Constitutional Court judge” in question are Makhanya and Yacoob.
“I was subjected to rebuke by a former Constitutional Court Judge who called me after my report was leaked. I raised it with him that I found his call to me inappropriate and disappointing. I rejected requests to meet Mr Pillay during his legal battle with Sars. An editor of a Sunday newspaper approached me on his behalf and I told him that it would be inappropriate of me to meet him. I must state that these requests were never made by Mr Pillay directly, so I am not entirely certain they were done on his instructions, as claimed,” Sikhakhane said in the email.
Sikhakhane said in the email that he had been the subject of two books “authored by [Johann] Van Loggerenberg”, adding, “it’s been disparaging on my name”.
He said while he understood that affected parties would be upset, there was no need to view his report in the context of a political fallout.
He was referring to Sars decision to fire implicated executives including Pillay, Van Loggerenberg, Pete Richer and Adrian Lackay after the release of the report.
“I have been attacked in the media for reasons I cannot understand. My integrity has been questioned by powerful forces and the media for a fallout that has nothing to do with me.”
Gordhan has since taken Mkhwebane’s report on review, citing alleged dishonesty and recklessness. Mkhwebane’s office said she would oppose the review application.
Makhanya allegedly bombarded Sikhakhane with text messages and phone calls until the advocate agreed to meet him at an eatery in Johannesburg on April 17 2015 - 11 days before Sars released the report on April 28 2015.
The report was commissioned by Pillay when he was acting commissioner but was handed over to Tom Moyane, who had been appointed commissioner.
Makhanya and his fellow City Press editors were allegedly also influenced by author Jacques Pauw to hold off on a story written by journalist Caiphus Kgosana in 2014 pending the release of the Sikhakhane report and for the benefit of implicated Sars executives.
On Saturday, Makhanya said: “I didn’t see your email yesterday (Friday) and I still can’t find it. Our response is that City Press will not be responding.”
Yacoob, who reportedly admitted to contacting Sikhakhane in 2016 but denied trying to unduly influence him, was allegedly angry with Sikhakhane for finding that “the establishment of the unit without having the requisite statutory authority was indeed unlawful”.
Yacoob allegedly called Sikhakhane after Pillay secretly sought legal opinion and advice from him on the preliminary findings. It is believed that Pillay leaked the Sikhakhane report to Yacoob first before it found its way to the press.
Yacoob could not be reached for comment.
Pillay’s lawyer, Bernard Hotz of Werkmans Attorneys, said he could not respond to allegations that Makhanya had tried to set up a secret meeting between his client and Sikhakhane because it was short notice and he was out of the country.
“My client also happens to be out of South Africa at the moment and therefore it is an absolute impossibility to respond to your questions within this time frame,” Hotz said.
Sikhakhane’s email further complained that he and his fellow panellists - advocate Rajab Budlender, advocates Ramano and Imraan Mahomed - had become “collateral damage of a battle that had nothing to do” with them.
He told Nugent that they had been “distressed” about how they had all been the “target of attack” when they were “merely doing our job”.
“All these media-choreographed attacks against my integrity have been extremely distressing and without justification.”
Despite writing to the Nugent Commission and his findings being the subject of questions and doubt among some who testified, Sikhakhane was not invited to appear before Nugent to give his side of the story.
“Sars has never in the past four years expressed any concern with our report. Nor has anyone sought to review it. It is most disheartening that four years later we have to watch a process akin to a review of our report unfolding with the most vicious attacks on our integrity expressed in public,” Sikhakhane added.
During the inquiry, Nugent refused to hear evidence about the rogue unit, saying it did not form part of his terms of reference. He advised complainants to approach authorities.
However, in his interim report to President Cyril Ramaphosa in September last year, Nugent said: “I find no reason why the establishment and existence of the unit was, indeed, unlawful, and I am supported in that by an opinion given to Mr [Tom] Moyane by leading senior counsel in late 2015. As far as I am aware, that opinion has never been publicly disclosed.”
Nugent could not be reached for comment and failed to respond to questions emailed to him.