High noon for Tom Moyane
Between an astounding about-turn by retired judge Frank Kroon, an attempted Constitutional Court challenge, and Tom Moyane loyalists throwing him under the bus, it’s been a busy week for the revenue service
The great SA Revenue Service (Sars) heist has been exposed in the public hearings held by the commission of inquiry into governance at the tax agency, with a preliminary report handed to President Cyril Ramaphosa on Monday likely recommending that suspended commissioner Tom Moyane be axed.
On the same day, Moyane approached the Constitutional Court to contest the disciplinary case against him.
It’s all fire and brimstone in Moyane’s 91-page founding affidavit. He complains of the "humiliating" treatment he received from former finance minister Pravin Gordhan, who "shouted" at him and called him "cheeky"; and of being a victim of the campaign to purge the "supposedly evil regime" of former president Jacob Zuma.
This week is a significant milestone in Ramaphosa’s bid to repair the damage done to Sars during the Moyane era — which culminated in a R50bn hole in revenue in 2017/2018 and the first VAT increase in two decades.
Sars commission chair judge Robert Nugent has delivered on Ramaphosa’s timeline, submitting his interim report on time, and Moyane has finally made good on his repeated threat to go to court.
These two critical events are related.
Moyane reveals in his court papers that he received a letter from Nugent informing him that he was set to recommend his removal as commissioner. But Moyane was also due to appear before the chair of his own disciplinary inquiry, advocate Azhar Bham, on Thursday — and failure to do so would result in a similar recommendation in that process.
So the suspended commissioner is running out of options — fast.
But take a step back to the Nugent commission hearings last week. Once again, the evidence before the inquiry was shocking, indicating that Moyane was central to the capture and destruction of Sars, with members of his own executive, once seen as loyal to him, throwing him under the bus.
In a spectacular about-turn, Kroon said his advisory board’s April 2015 findings on Sars were ‘incorrect’
Sars chief officer for governance Hlengani Mathebula‚ who served as enforcement boss in 2016, told the inquiry that Moyane had provided him with a list of senior officials he wanted suspended without due process, along with a list of preferred replacements.
Mathebula told the inquiry that his relationship with Moyane began well — cordially. Among Sars staffers, he was seen as part of the inner circle. But when he refused to accede to the "hit-list" demand, their relationship soured.
The FM understands that Mathebula did make some questionable decisions during his time as head of enforcement, but his evidence against Moyane was damning nonetheless.
But it was the evidence of retired judge Frank Kroon that really stunned observers — and that will damage the victimisation claims Moyane makes in his Constitutional Court papers.
Kroon was appointed chair of an advisory board for Sars by finance minister Nhlanhla Nene in February 2015. At the time, the now-discredited allegations of a "rogue unit" at the revenue authority were fresh, and a furious battle was being fought between Moyane and Sars officials he wanted purged.
The "rogue unit" allegations reported in the Sunday Times had been confirmed by an internal Sars investigation chaired by advocate Muzi Sikhakhane. He had found "prima facie evidence" suggesting the establishment of the unit was unlawful, and recommended that a judicial commission of inquiry be set up to probe the matter further.
This was never done. Instead, Moyane commissioned auditing firm KPMG to look into the allegations. That report on Sars and the "rogue unit" was subsequently also discredited; the auditing firm retracted its findings and repaid the R23m it billed Sars for work that Moyane’s lawyers seem to have had a direct influence over.
In 2015, Moyane’s lawyers at the time, Mashiane Moodley & Monama, signed off a memorandum to KPMG auditor Johan van der Walt. In it, they suggested executive findings and conclusions that found their way, almost entirely copied and pasted, into KPMG’s final report on Sars.
Kroon’s advisory board, appointed by Nene, simply endorsed Sikhakhane’s findings — and, in fact, embellished them.
It released an astounding statement in April 2015 in which it said the establishment of the unit was unlawful and that criminal charges should be brought against those who had set it up.
What it means
Nugent has handed his interim report to Ramaphosa; Moyane has made good on his legal threats
A month later, on the basis of Kroon’s statement, Moyane lodged a criminal complaint with the Hawks around the establishment of the unit. This led to the Hawks investigating Gordhan and delivering the now-notorious 27 questions to him on the eve of the February 2016 budget. It also led to the National Prosecuting Authority charging Gordhan, as well as former Sars commissioner Oupa Magashula and former acting commissioner Ivan Pillay.
This history is critical if one is to understand the significance of Kroon’s revelations before Nugent last Friday. In a spectacular about-turn, the retired judge said his advisory board’s April 2015 findings were "incorrect" and that the establishment of the unit was not unlawful. It was a shock that Kroon went back on findings he had previously attempted to defend — more so his admission that he and his board had not lifted a finger to investigate the "rogue unit" allegations. Instead, they relied on the Sikhakhane report, the KPMG report and the word of Moyane and his sidekick, former Sars senior official Jonas Makwakwa.
With the KPMG report and the Kroon board’s findings discredited, and Nugent’s interim report on the revenue service now handed to Ramaphosa, it is unclear whether Sikhakhane will appear before the Sars inquiry. But he appears to have his hands full, defending Zuma in the state capture inquiry and beyond.
Sikhakhane will have to clarify his role in the Sars matter — especially after being appointed as an integral part of the legal team of the person seen as the ultimate architect of Sars’s demise: Zuma.