Charge sheet claims Tom Moyane tried to thwart investigation
The charge sheet presented to suspended South African Revenue Service (SARS) commissioner Tom Moyane indicates that he actively impeded the investigation into unusual and suspicious transactions in the bank account of his second in charge, Jonas Makwakwa, that were identified by a Financial Intelligence Centre report.
It revealed that Makwakwa was permitted to return to SARS despite unanswered questions in the findings of the investigation into the specific unusual and suspicious transactions conducted by audit firm PwC.
President Cyril Ramaphosa, who suspended Moyane in March, indicated that he had lost confidence in the commissioner over his handling of the Makwakwa matter. This was about a week after Makwakwa resigned under a cloud when it emerged that a SARS service provider was among the companies listed as making payments into his personal bank account in the Financial Intelligence Centre report.
Moyane faces charges of misconduct in violation of his duties and responsibilities linked to his handling of the allegations against Makwakwa, making unauthorised bonus payments, misleading Parliament and instructing a SARS official not to co-operate with an inquiry by audit firm KPMG.
Moyane’s legal team is preparing a possible approach to the courts to challenge the disciplinary inquiry, his attorney Eric Mabuza confirmed on Sunday.
Before his suspension, Moyane wrote to Ramaphosa threatening court action. He also requested that the president "urgently" set up an inquiry into the running of SARS.
According to the notice of disciplinary inquiry signed by Ramaphosa and sent to Moyane, the SARS commissioner failed to ensure that an investigation into possible tax evasion or other breaches of the Tax Administration Act by Makwakwa and his partner, Kelly-Anne Elskie, was conducted by SARS — the only effective entity that could investigate such issues.
The notice further indicates that Moyane failed to co-operate with PwC, which was denied access to Makwakwa and Elskie’s laptops and cellphones.
The charges against Moyane include that he failed to provide PwC with records, documents and systems to investigate whether Makwakwa and Elskie violated SARS policies and the Public Finance Management Act. He also failed to ensure PwC was afforded access to all Makwakwa’s bank accounts for the purpose of the investigation and failed to act on PwC’s recommendation for further investigation into whether Makwakwa violated foreign exchange regulations.
Moyane is said to have failed to obtain approval from former finance minister Pravin Gordhan for bonus payments to members of his executive as required by the SARS Act.
This failure resulted in the auditor-general finding against the institution for "internal control deficiency and irregular expenditure".
Moyane is also accused of misleading Parliament over Makwakwa when he said that Hogan Lovells had been appointed to investigate all issues and that he had no role in procurement processes. He is also accused of ordering SARS official Helgard Lombard to feign illness on the day he was set to be questioned by KPMG on the controversial rogue unit.
Retired Constitutional Court judge Kate O’Regan will chair Moyane’s disciplinary inquiry.