Opinionista Professor Balthazar 2 October 2018

Frank Kroon: South Africa’s own judicial embarrassment

While many were riveted to the hearings before the US Senate’s judiciary subcommittee concerning Judge Brett Kavanaugh and justifiably wondered how such a person could be a judge, let alone one on the highest court of his country, we in South Africa were having our own judicial embarrassment.

In May 2015 Minister of Finance Nhlanhla Nene announced the constitution of an Advisory Committee to be chaired by retired Judge Frank Kroon to advise the Minister and SARS Commissioner Tom Moyane on a number of governance questions, including organisational and operational plans which at that time were the subject of the Bain proposals and the further controversy concerning the so called rogue unit.

At the time, there was some surprise that the Davis Tax Committee was not charged with this mandate in that it was already required to deal with SARS and its capacity to collect revenue. However, as Judge Kroon was a most experienced judge who had acted as a judge of the Constitutional Court it was expected that he would perform an equally thorough and independent job.

Unfortunately that did not prove to be the case. Within but a few months the Kroon Committee had found that the unit set up to deal with widespread allegations of tax evasion and customs fraud was illegally constituted and that SARS should charge the employees responsible for the establishment of the unit. Further a criminal case should be instituted against these people which included Ivan Pillay, Pete Richer and Johann van Loggerenberg.

Even a cursory read of the Kroon Panel’s finding revealed that it had done no independent work but had relied wholly on an opinion from Adv Musi Sikhakane and two incomplete investigations conducted by none other than KPMG of Gupta fame.

Once the Sikhakane report was revealed, it was clear that it was predicated on a significant misreading of the relevant legislation and was thus manifestly incorrect in law. But as a podcast of an interview that Judge Kroon gave on 28 April 2015 reveals, the judge confidently defending the approach adopted by his panel. And as for the mess that Bain recommended, there was nothing that Kroon offered by way of critique even though the Bain structure helped to eviscerate SARS.

The effect of the Kroon findings was not only its lost opportunity in preventing the destruction of SARS as the jewel in the State administration crown but sadly the ruination of the careers of extremely capable SARS officials who were the subject of harassment from the Hawks and the National Prosecution Authority. In addition the manner in which Kroon supported the narrative of illegality allowed Zupta run institutions to go after Minister Pravin Gordhan in an attempt to discredit one of the ministers who at that time was standing up to the Zupta operation.

So when before the admirable Nugent Commission, Judge Kroon recanted and conceded that his findings were based solely on second hand and flawed evidence, that his panel had done no independent work nor had it adhered to the basic principle of natural justice in seeking to hear the versions of the affected parties, a very dark day had arrived for the judicial system. It is truly incomprehensible that a highly experienced judge would have committed so many mistakes, which allowed Bain a free hand played havoc with the lives of dedicated civil servants and a most principled Cabinet minister.

Surely the matter cannot be left there.

Judge Kroon claims that upon reflection, he was ill advised to trust Moyane and that is a fair concession. But there were other members of the Kroon Panel including, Jonas Makwakwa, then of SARS, who was Moyane’s right hand person. To what extent did these panellists provide (mis)advice to the judge? They had been appointed presumably due to their expertise in tax and tax administration and hence to advise the judge accordingly. Judge Kroon owes the country an explanation into their role.

Recently in the pages of this publication Jacques Pauw has written about the need for the members of the Sunday Times who caused such nonsense of the unit at SARS to be front page news at the time to testify before the Nugent Commission. His argument is unanswerable but it may even have to be extended. In 2015 journalist Pearlie Joubert deposed a damning affidavit about the Sunday Times reportage and the possible links to leaks from the Kroon panel. Judge Kroon’s revelations last week demand that this entire sorry saga be revisited.

Doubtless Judge Kroon is guilty of no more than lack of diligence but the consequences are dire. It does now appear that together with the legal and accounting profession even the judiciary (by way of this case) were not unaffected by the damage that the past 10 years of rule by a parallel state has wrought on this country. DM

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