Hogan Lovells throws Tom Moyane under the bus
Former Sars boss Tom Moyane has launched a new bid to regain his position, while law firm Hogan Lovells has thrown him under the bus. Could criminal charges follow?
Axed SA Revenue Service (Sars) boss Tom Moyane has yet to answer to the allegations levelled against him individually in the disciplinary process initiated by President Cyril Ramaphosa in March.
At the heart of these charges is Moyane’s handling of the R1.2m in suspicious and unusual transactions in the bank account of his former second-in-charge, Jonas Makwakwa, which was identified by the Financial Intelligence Centre (FIC) in 2016.
This week the matter took an interesting twist when Hogan Lovells, the law firm Moyane hired to investigate the Makwakwa transactions, accused Moyane of having been a "liar" when he publicly said his former second-in-charge was cleared of wrongdoing and allowed him to return to work in November 2017.
Moyane approached the Pretoria high court last week to reverse his axing and prevent Ramaphosa from appointing a successor. Arguments were heard this week. It was yet another attempt to hobble the restoration of the key state institution.
Moyane’s battle to keep his job began in March, and the past nine months have been characterised by a vociferous attempt on his part to block all processes to hold him to account and get Sars on the road to recovery.
Moyane also wants the court to prevent the Sars commission of inquiry, chaired by retired judge Robert Nugent, from delivering its final report to Ramaphosa in the coming week, and to restore his suspension (he was fired by the president on November 1). He wants to revert to suspension on full pay and potentially face his disciplinary charges.
While the extent of Moyane’s misrule at Sars was made patently clear before the Nugent inquiry over the past five months, the disciplinary inquiry against the former tax boss has largely stalled due to his "Stalingrad" legal approach.
What Moyane did is was not only lying — it’s was lying and manipulationWessel Badenhorst
The charges he faces in the disciplinary process are particularly damaging, especially with Hogan Lovells this week throwing him under the bus and calling him a liar.
The firm was tasked by Moyane with investigating the suspicious and unusual transactions after he sat on the FIC report for four months. The FIC report was handed to Moyane in May 2016, but instead of acting on it, he handed it directly to Makwakwa and kept mum about it until September, when the Sunday Times reported on it.
After a public outcry, Moyane was forced to suspend Makwakwa, and announced that he had instituted an investigation by "respected" international law firm Hogan Lovells.
The subsequent investigation was described as a "whitewash" by civil society group Corruption Watch, and the firm was heavily criticised by parliament over its handling of the matter after Moyane announced in November 2017 that Makwakwa had been cleared of all charges by the Hogan Lovells investigation and would return to work.
Hogan Lovells was accused of being complicit in Moyane’s attempt to shield Makwakwa.
Hogan Lovells partner Wessel Badenhorst tells the FM that the firm investigated only one strand of the allegations against Makwakwa in the FIC report, and that there were two outstanding matters that had not been dealt with: an investigation by the Hawks and a probe of potential tax evasion that should have been conducted by Sars.
Yet, despite having two key prongs of the investigation outstanding, Hogan Lovells issued a final report on the matter and handed it to Moyane.
Badenhorst says this was because the "labour laws put [the firm] in a corner".
He adds: "Makwakwa at that point … had been on suspension for a year, he was running to the [Commission for Conciliation, Mediation & Arbitration] saying: ‘You have to charge me now’ … We could not get anything further out of the Hawks; Sars [was] saying the tax investigation [was] confidential and [was] not telling us what the outcome [was] … so that was very frustrating."
What it means
Two investigations into Moyane’s conduct at the revenue service have not yet been finalised
He admits that the disciplinary process that followed, in which Makwakwa was found not guilty, was weak.
"But where it goes all wonky is where Moyane comes out and says Hogan Lovells has cleared him … we came out a week later and said we hadn’t cleared him."
Badenhorst says Hogan Lovells was bound by client confidentiality and could not divulge further details at the time, at least until Sars lifted the privilege clause after Moyane’s departure.
He says the firm stated in its final report that the two strands of the investigation were still outstanding, and that this is where "Moyane lied" when he said the law firm had cleared Makwakwa of wrongdoing.
"What Moyane did was not only lying — it was lying and manipulation. Not only had he lied to the minister, parliament and the public, but he also sold out his own employment relations department," Badenhorst says.
He admits that Hogan Lovells could have handled things differently and says it has learnt "lessons".
With these developments, it is clear that, should Moyane by some miracle win in the high court and eventually face the disciplinary process started in March, Nugent’s scathing findings on his approach to management could amount to a walk in the park.
His conduct in the Makwakwa matter could very well result in him being charged criminally, with the Hawks and Sars investigations still seemingly not finalised.