Retired judge Robert Nugent. Picture: SIMPHIWE NKWALI
Retired judge Robert Nugent. Picture: SIMPHIWE NKWALI

Suspended Sars commissioner Tom Moyane received legal opinion from senior counsel in late 2015 indicating that the establishment of the high-risk investigation unit, or “rogue unit”, was not unlawfully established. But Moyane did not make this information publicly available, according to an interim report by Sars commission of inquiry chair, retired judge Robert Nugent, to President Cyril Ramaphosa, submitted at the end of September, which Business Day has seen.

“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 Moyane by leading senior counsel in late 2015. As far as I am aware, that opinion has never been publicly disclosed,” Nugent said in his report.

The rogue-unit narrative was used as an excuse to purge senior Sars executives, as well as disband the tax agency’s executive committee when Moyane took over as commissioner at the end of 2014. It was also the context in which Moyane justified his far-reaching overhaul of the Sars operating model by consultants Bain & Company, which neutralised its effectiveness and brought it to its knees.

Nugent conceded, however, that some of the activities of some of the unit’s members could have been unlawful. “It might be that some of the activities of one or more of its six members [were] unlawful, but that is something else. If that was, indeed, the case, it is nonetheless incredible that unlawful acts of one or more of six men led to millions of rands being spent, and the holding of repeated inquiries, with continuing damage to the reputation of Sars.”

The rogue-unit story — which was initially reported on in the Sunday Times but for which the paper has since published a public apology — was used to justify the removal of key officials, as well as the restructuring at Sars.

Nugent’s report on a new legal opinion, which Moyane received at the end of 2015, indicates that the suspended tax commissioner was aware that the establishment and functioning of the unit was legal yet he continued to push the so-called rogue-unit narrative, which was also pursued by the Hawks and the National Prosecuting Authority (NPA).

Nugent’s final report on the administration and governance at Sars is due at the end of November and is set to delve further into the matter of the unit, as well as the impact of the far-reaching restructuring by Moyane on revenue collection.