SARS ‘not opposed’ to releasing reports on Makwakwa’s account
However, it has ‘been advised there could be a legal challenge if it releases any of the two reports’ due to FIC Act constraints
The South African Revenue Service (SARS) says it is "not opposed" to releasing the reports of the investigation into suspicious and unusual transactions into the account of its second-in-charge, Jonas Makwakwa, but has received legal advice that it should not do so.
The Makwakwa saga has dragged on for more than a year after it emerged that the Financial Intelligence Centre (FIC) had flagged R1.2m in suspicious and unusual transactions into Makwakwa’s account and that of his girlfriend, Kelly-Ann Elskie.
SARS appointed law firm Hogan Lovells to investigate the matter and, earlier this month, announced that Makwakwa — who had been on suspension for more than a year — had been cleared of all charges and would return to work.
Further questions emerged on the matter when Hogan Lovells released a statement, saying it "did not directly" investigate the questionable transactions because the mandate it received from SARS was "limited". The law firm has, to date, not responded to questions about this. Business Day has seen a proposal for the terms of reference from Hogan Lovells that does, in fact, deal with the transactions signed off by SARS commissioner Tom Moyane. This could indicate there is something amiss in the manner in which the probe was conducted.
In a statement on Wednesday, SARS said it has received numerous requests from Parliament, civil society and the media to disclose the reports about the Makwakwa matter and "in principle" it was not opposed to releasing them.
"However, legal provisions of the FIC Act do not allow the disclosure of a South African citizen’s personal information arising from an FIC suspicious report," SARS said. "In fact, SARS has sought legal guidance on this matter. We have been advised there could be a legal challenge in the event that SARS releases any of the two reports mentioned."
SARS has asked Parliament’s chairman of the standing committee on finance, Yunus Carrim, to put together a four-member team to discuss the "legal implications" of releasing the report to Parliament.
"The four-member team being proposed would consist of legal representatives from the National Assembly, National Treasury, FIC and SARS. We are awaiting the outcome of this request and will take guidance from [it]."