South Africa

South Africa, Politics

Analysis: Moyane, the Gupta R70 million windfall and the trouble with SARS

SARS Commissioner Tom Moyane, himself facing charges launched by Corruption Watch for disclosing the contents of a Financial Intelligence Report on irregular payments to the alleged culprit, his second in command, Jonas Makwakwa, has been fingered in weekend media reports for not disclosing that he had personally intervened to ensure a R70 million VAT refund to the cash-strapped Gupta family. SARS on Tuesday did not deny the payout, only that the tax authority is not allowed to discuss or divulge information about individual taxpayer's affairs. Moyane's term as Commissioner has lurched from one sordid scandal to another. By MARIANNE THAMM

News 24’s Angelique Serrao reported at the weekend that there was great unease among some SARS employees after the revenue service had paid out a R70 million VAT refund to the Gupta-owned Oakbay Investments after the personal intervention of SARS Commissioner Tom Moyane.

The payment, wrote City Press, was made into a proxy account – either that of an overseas bank or the trust account of a lawyer – because of South African banks refusal to do business with the Gupta family. This would make the windfall irregular as VAT refunds can only be paid into the account of the taxpayer.

SARS on Tuesday, noting weekend reports about the R70 million payment, issued a general statement headed “SARS Does Not Share Taxpayer Information”. There was, however, no denial that SARS had paid R70 million to the Gupta family’s Oakbay Investments nor of Moyane’s alleged personal role in facilitating the refund.

“SARS would like to place on record that assessments and refunds are dealt with through a risk engine that utilises tightly governed rules and processes, to ensure impartiality in SARS dealings with taxpayers,” read the release.

But the revelation by City Press raises several pertinent questions about the controls exerted at the revenue service and Moyane’s leadership of this key government institution.

What renders the revelation of the multi-million rand refund to the Guptas so extraordinary is that since 2016, Moyane himself has faced criminal charges lodged by Corruption Watch, for having possibly illegally disclosed the existence and contents of a Financial Intelligence Centre report to his Number Two, Jonas Makwakwa and his girlfriend, junior tax official Kelly-Anne Elskie (both now on suspension after their suspicious transactions were reported in the media) as well as further charges for failing to report the suspect transactions to the Hawks as required by South African anti-corruption laws.

There were also revelations in 2015 of a tender worth over R220 million, issued by SARS to a company Lekgotla Trifecta Collections, a consortium which included Moyane’s nephew’s Nhlamulo Ndhlela’s company, Lekgotla Outsourcing. Moyane claimed ignorance after this was exposed in the media, but eventually had the contract set aside by court order at taxpayer’s expense.

More scandals followed including that Makwakwa may have unfairly promoted Elskie and that she may have lied about her qualifications. The investigations into Makwakwa and Elskie have both been outsourced by SARS and Moyane recently told a parliamentary oversight committee that the Makwakwa/Elskie matter was “complex” and “should not be rushed.”

But exactly what it is that SARS finds so “complex”, particularly in determining the origins of suspicious deposits into the bank accounts of Makwakwa and Elskie, is troubling. After all, this is what SARS does – it audits taxpayers. There are teams of in-house auditors who could quickly resolve the matter.

It was under Moyane’s watch that the alleged attempted kidnapping and assault of SARS official Vlok Symington took place in a SARS boardroom in 2016. In that instance SARS could also be accused of possibly defeating the ends of justice by withholding critical evidence – what has become known as the “Symington memorandum” – in Berning Ntlemeza and the Hawks’ trumped up case against former finance minister Pravin Gordhan, former SARS commissioner Oupa Magashula and former deputy Ivan Pillay.

The Symington kidnapping implicated Moyane’s bodyguard Thabo Titi who was filmed taking instructions on his cell phone from someone he referred to as “sir”. It is highly unlikely that Titi would’ve been at the scene without at least knowledge, if not by direction of Moyane.

This year SARS faced a Tsunami of  taxpayer complaints about delayed refunds, so much so that Tax Ombud, Judge Bernard Ngoepe, initiated an investigation. Allegations were that refunds were deliberately being withheld to make up for SARS’ poor collections figure for the 2016/2017 financial year.

If this was indeed the plan by SARS, it didn’t work, because by March 2017, Moyane was forced to admit that SARS had not managed to collect the targeted revenue that government required for funding the next financial year, due to the reduction in the tax target by a staggering R30 billion. The last time such bad collections had been recorded was during the worldwide financial meltdown in 2008.

Insiders have said it is unheard of that the commissioner at SARS would intervene personally in a refund matter. In this regard Moyane must surely have been aware of the 72 Financial Intelligence Centre reports that were lodged during Pravin Gordhan’s court battle with the Guptas? These disclosed that a whopping R7 billion had allegedly been siphoned offshore by the Gupta family.

With regard to the Gupta R70 million VAT refund, it appears Moyane ignored two legal opinions that SARS could not make the Oakbay refund.

And then there is the not-so-small matter of Moyane’s personal relationship with President Jacob Zuma, his former late wife Kate Mantsho, mother of Duduzane Zuma who is a business associate of the Gupta family.

Moyane grew up with Mantsho and revealed in a PowerFM interivew that he regarded her as “family sister”. He also said he had often “babysat” Zuma’s children while they were in exile in Mozambique.

Chapter 2, Part B, section 7 of the Tax Administration Act 28 of 2011 states that a SARS commissioner “may not exercise a power or become involved in a matter pertaining to the administration of a tax Act, if the power or matter relates to a taxpayer in respect of which he has or had, in the previous three years, a personal, family, social, business, professional, employment or financial relationship presenting a conflict of interest or other circumstances present a conflict of interest”

Moyane was appointed by President Zuma in September 2014. This means, as SARS commissioner, Moyane may not go near Zuma’s tax affairs, nor that of his family’s or their business interests.

In that sense it would be appropriate then if Moyane stayed well clear of any dealings relating to Duduzane or any of his businesses associates and left this to an impartial SARS official.

Moyane’s meeting with Duduzane in January 2016 at the Midrand coffee shop could only mean one of two things. Either they met on SARS matters, which presents Moyane with the dilemma of having met a taxpayer alone, and therefore contrary to SARS policy or alternatively, it was a social meeting between friends. Either way, it brings Moyane squarely into the scope of possible “other circumstances which present a conflict of interest”.

In 2013, on the strength of a single City Press article implicating then SARS commissioner Oupa Magashula, the ministry of finance instituted a panel, chaired by retired constitutional Justice Zak Yacoob, to consider the matter. Magashula resigned in its wake, even when then finance minister, Gordhan, stated that “(T)he committee found no evidence that Mr Magashula committed a crime”.

The terms of reference of that committee did not suggest that Magashula committed a crime in any event, and seemingly focused on breaches of policy and judgement. By 2014, following a short email by now severely discredited State Security Agency and British American Tobacco triple-agent, attorney Belinda Walter, another committee was instituted under attorney Moeti Kanyane to probe SARS group executive, Johann van Loggerenberg. By August 2014, this committee found Walter’s allegations to be unsubstantiated and without supporting evidence. Soon after, a second committee under advocate Muzi Sikhakane followed to probe virtually the same allegations. Midstream its probe, Zuma appointed Moyane as tax boss.

Almost two weeks after Moyane had taken office, Sunday Times newspaper began the first of a series of articles about a supposed “rogue unit”. The later-published Sikhakane report was extended to investigate these allegations but none of these were put to Van Loggerenberg to answer to by the committee.

By December 2014, using the Sikhakane committee as an excuse, Moyane disbanded the SARS executive committee and suspended deputy commissioner Pillay and group executives Pete Richer and Van Loggerenberg. They would resign soon after in 2015 claiming none of them had been given a right of reply to the Sikhakane report.

Their departure was followed by over 50 more senior officials. Moyane then wasted no time and relied on yet another committee, this time chaired by retired Judge Frank Kroon, to justify the Sikhakane report.

This committee, by own admission, did not afford any of those affected a fair hearing. Two members, Makwakwa and advocate Rudolf Mastenbroek, appear to both have been conflicted. Makwakwa on account of his suspicious transactions and extramarital affair with a junior staff member whilst married to another junior staff member, and Mastenbroek because of his earlier alleged efforts to peddle negative stories to The Sunday Times about Gordhan, Pillay and Van Loggerenberg in 2013 and 2014. Mastenbroek, contacted the Daily Maverick after the initial publication of this article and denied these allegations.

Moyane didn’t stop there. SARS would eventually pay audit firm KPMG, R23 million to conduct what  CEO Trevor Hoole would later describe as a “documentary review” which was issued with “limitations” some of which, no less than “not engaging” those affected and not giving them access thereto. This disclaimer to the report rendered it useless and a waste of money. Pillay, Richer and Van Loggerenberg have criticised these processes publicly, saying they were “flawed in fact and law”. By April 2016, The Sunday Times withdrew their stories of a “rogue unit”.

Moyane has been central in the bitter battle between those in the ANC aligned to President Zuma and who have been placed in key state institutions and who form part of what has become known as “State Capture”.

The treasure trove of emails that have become known as the #GuptaLeaks is slowly unravelling the complex network of high-powered and influential politicians and individuals who have enabled the Gupta family to rise from shoe sellers to one of the wealthiest families in South Africa by locating themselves close to the levers of power. SARS will no doubt feature as a key institution if and when a commission of inquiry or criminal investigation is properly launched. Will Moyane survive unscathed? DM

Photo: SARS commissioner Tom Moyane  addresses media during the announcement of Preliminary Outcome of Revenue Collections for 2016/2017 financial year, 3 April 2017 (Photos GCIS).

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