Bain pays back the money over botched Sars work, but may face fraud charges
Bain & Company has paid the SA Revenue Services (Sars) back for its botched restructuring of the tax agency with interest amounting to R217m, according to the final report of the SARS Commission of Inquiry, chaired by retired judge Robert Nugent.
Nugent, however, took a dim view of the move, highlighting how Bain had not been forthcoming with the commission, saying that full disclosure would help the South African public more than just repayment, which could be seen as "marketing".
Bain's former partner, Vittorio Massone, has also resigned over the damning evidence of the consultancy's complicity in axed commissioner Tom Moyane's "seizure" of Sars was unearthed during the Nugent inquiry. Massone was not spared in the report — the commission found that he had lied under oath to the commission on a few occasions. He has been exposed as a shrewd operator who cynically used political connections to grow Bain's business.
Payment of money without prior disclosure of the truth is not reparation, but marketing insteadJudge Robert Nugent
This is not the end for the Boston-based consultancy with Nugent recommending that fraud charges be pursued over the irregular manner in which it obtained the R164m Sars contract to restructure the tax agency's operating model.
The consultancy was also rebuked in the final report for failing to cooperate with the commission after the damning revelations emerged that it had been preparing Moyane for his stint as Sars commissioner a year before his appointment was announced. After revealing this, Massone was called on to answer further questions from the commission, which he did not do, but rather submitted an affidavit in response.
Thereafter, Bain completely withdrew its participation in the commission.
Nugent says while Bain paying back the money was "admirable"", if it wanted to truly make reparations, it should give evidence on its knowledge of the extent of state capture it had witnessed to one of the three other commissions of inquiry under way.
"Payment of money without prior disclosure of the truth is not reparation, but marketing instead," the report says.
The 200-page report presents a startling picture of the extent of the governance failures at Sars under Moyane, in which Bain was complicit from the outset.
"Clearly Bain and Mr Moyane were in deep collusion to restructure Sars, no matter what they might have found at Sars. Neither was concerned for the interests of Sars, but for their own interests, that were at least aligned with one another, though they might not have been quite the same," the report said.
The report extends to allegations about the so-called rogue unit, as well as to the refund of value added tax to the controversial Gupta family, for which a senior official is currently being disciplined.
"What we have found and report on are manifestations of the failure of integrity and governance we have observed, but it is probable there were others we did not detect," the report, submitted to President Cyril Ramaphosa on Friday, said.
The report makes recommendations for an "inspector general" for Sars, with investigative powers, to oversee governance in order to avoid a similar failure from occurring again.