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Cape Town - Why did SA Revenue Service commissioner Tom Moyane wait until the public exposure of the matter relating to SARS senior official Jonas Makwakwa before he was suspended?
This was one of the questions put to Moyane during a briefing of Parliament's standing committee on finance by SARS on Tuesday.
Makwakwa was suspended, with full pay and benefits, in mid-September 2016, following a report by the Financial Intelligence Centre (FIC) that he allegedly made "unusual and suspicious" deposits amounting to R1.2m into a number of bank accounts between 2010 and 2016, Fin24 reported previously. It was also alleged that more than R450 000 was deposited into the bank account of his girlfriend, Kelly-Ann Elskie.
Makwakwa had been cleared of all wrongdoing and returned to SARS in November. SARS issued a statement indicating that law firm Hogan Lovells recommended disciplinary action be taken against Makwakwa, which Hogan Lovells later revealed was for the non-disclosure of external interests. In its own statement Hogan Lovells said that it did not investigate the transactions highlighted by FIC.
Alf Lees (DA), a member of the committee, asked Moyane how Makwakwa could be allowed back at SARS. In Lees' view, there must be a way he (Makwakwa) can be suspended until criminal charges against him are either set aside or he goes to jail or faces some kind of penalty.
Derek Hanekom (ANC), another member of the committee, wanted more information from Moyane on an internal disciplinary hearing of Makwakwa where he was allegedly cleared of all charges.
"Was it established or not that they [Makwakwa and Elskie] committed a crime or are you still waiting for an outcome of that? Did they pay tax on this money? SARS must do a tax audit to see if it was defrauded," said Hanekom.
To this committee member Pinky Kekana (ANC) wanted to know why Lees' allegations are so similar to that of the Organisation Undoing Tax Abuse (Outa). In her view, the Makwakwa matter has to be resolved via the legal route.
A member of the EFF sitting in on the briefing wanted to know how SARS satisfied itself at the disciplinary hearing that there was no wrongdoing by Makwakwa. He wanted to know if the internal disciplinary hearing was not perhaps just an "artificial way for compliance".
What were the offenses?
Yunus Carrim (ANC), chair of the committee, said the committee has not even been informed what the offences were Makwakwa and Elskie were accused of at the disciplinary hearing.
He said Kekana had rightfully pointed out that the criminal investigation has to be handled by the judiciary process, but that, at the same time, the committee cannot escape its oversight role to deal with contradictions in the public domain and the way SARS has handled the Makwakwa matter.
Carrim wanted to know from Moyane why it took him so long to act against Makwakwa.
"It is not credible. In this world of smoke and mirrors, including about the President, you cannot tell what is fact or fiction. Mr Makwakwa and Ms Elskie could be as innocent as St Francis and Mother Theresa, but yet we get fuzzy answers from SARS, even today," said Carrim.
"There should be serious consideration to suspend Makwakwa and his partner until the [criminal] matter is resolved. This has nothing to do with the DA. Senior members of the ANC NEC have raised the matter with me.
"There is a belief that Makwakwa is being protected because of what he knows. Some say it is white monopoly capital, but I am a Marxist and frankly, I am a committee chair and must do my job and there is a strong perception that Makwakwa is being protected and you [Moyane] are feeding into that perception.
"Commissioner, your management of this matter leaves lot to be desired."
Moyane responded that any delay is not a lack of ability to take action. There were processes he followed in this matter. He indicated that the SARS disciplinary hearing dealt with allegations of misconduct by Makwakwa in terms of the employee relationship with SARS.
Moyane emphasised repeatedly that the criminal process was and is not for him to deal with as the relevant legal authorities are having an inquiry into those allegations.
Innocent until proven guilty
"In the criminal process you are innocent unless proven otherwise. I have no clue up to where the [criminal] investigation is. It would be unfair of me to ask them. I did what was correct within my responsibility," said Moyane.
"Whatever the outcome [of the criminal inquiry] I will abide by that in my role as commissioner of SARS, but I have no responsibility or answers regarding the criminal investigation. I have no information about its progress. It is a separate process. As soon as I am shown documents regarding what [Makwakwa] is being charged with, I will take action within 24 hours."
Lees differed from Moyane and said it is the commissioner's moral duty to follow up on the progress being made with the criminal investigation against a senior SARS official (Makwakwa).
A SARS official informed the committee that all the SARS disciplinary hearing dealt with was allegations of misconduct by Makwakwa, not criminal allegations. All the disciplinary hearing could find was that Makwakwa failed to declare his properties and had called a SARS employee while he was suspended (something that was not allowed).
"There was no way we could continue his [Makwakwa's] suspension just because a case was opened. We can only do so once he is charged. He is right to be back at SARS," the official told the committee.
Carrim told Moyane that the committee briefing was not about the merits of the case against Makwakwa.
"We already agreed the legal process will happen, but we propose that the head of SARS writes to the Hawks or contacts them verbally to find out what the progress is in the criminal investigation against Makwakwa," said Carrim.
Committee member Thandi Tobias-Pokolo (ANC) agreed with Carrim that the committee simply wants to know how far the criminal investigation is.
The committee indicated that it wants to try and meet with SARS again next week in order to obtain more answers to its questions.
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