Suspended SARS Commissioner Tom Moyane has asked President Cyril Ramaphosa to reexamine paying him a multi-million rand settlement to leave his position – including rewards “because of him” for effectively gathering trillions of rand.
But should Ramaphosa insist that he be subjected to a disciplinary inquiry on charges of gross misconduct‚ Moyane has made it clear that he believes his legal costs should be funded by the state.
“It is patently unfair that the President should use taxpayers’ money to prosecute his case‚ but the Commissioner‚ who collected the said taxpayers’ money‚ should be expected to fend for himself using his own thanklessly and hard-earned income and family resources‚” Moyane’s lawyer Eric Mabuza wrote in a letter to the Presidency on May 7.
“This is not an issue which ought properly to be unilaterally imposed by the President when he is an adversary in the said proceedings.
“In this regard‚ we propose that the parties should seek to find a fair dispensation through engagement and negotiations. For example‚ it may be agreed that the state pays for the Commissioner’s legal representation‚ subject to a refund if he is found guilty.”
Moyane’s lawyers have given Ramaphosa until noon on Tuesday to indicate whether his office will agree to discuss possible state funding of his legal fees. They also want him to withdraw inquiry rules that could see the process against Moyane decided solely on documentary evidence – with no witnesses‚ including Ramaphosa‚ being called to testify.
If they don’t get the answers they want‚ they’ve strongly suggested that they will try to go straight to the Constitutional Court‚ so that the issues they raise can be decided as soon as possible.
They argue that the “entire (Moyane disciplinary) process will be almost entirely centred around countless factual disputes” and it is therefore critical that witnesses be allowed to testify and face cross-examination. They further stress that the inquiry against Moyane involves “a direct appointee of the President of the Republic and his personal conduct imposing the suspension and all related processes”.
“Were it to be left unchallenged‚ such conduct by the President would set a very dangerous and ominous precedent for labour relations in this country.”
According to Moyane’s lawyers‚ Ramaphosa initially offered the commissioner six months’ salary to resign‚ and later increased this to a year’s salary. According to SARS’ annual report‚ the commissioner’s annual salary is R3.665-million.
Moyane’s lawyers have reiterated his counter offer in this latest letter to the Presidency: being paid out in full for the 18 months that remain of his contract‚ any bonuses due to him over the past three years and a “jointly agreed public statement of the parties”.
Were it to be left unchallenged‚ such conduct by the President would set a very dangerous precedent.
Ramaphosa indicated that he had lost confidence in Moyane following a meeting with the tax boss at his private residence in March this year.
Mabuza has made it clear that Ramaphosa must be called to testify about that meeting.
“The President is central to the matter. He signed the charge sheet. He is in fact the only dramatis persona. It is he who allegedly ‘lost confidence’ in Mr Moyane. How else can it be determined if that decision is rational or not‚ following the conversation between the two of them? Ramaphosa must testify or Moyane must walk scot-free. It’s as simple as that.”
The charges against Moyane concern his handling of serious criminal allegations against his former second-in-command‚ Jonas Makwakwa‚ the “irregular” and unlawful payment of bonuses and allegations that he misled Parliament and told a SARS official not to cooperate with the so-called Rogue Unit investigation. Moyane’s lawyer says he will plead not guilty to all 12 charges.
THE CHARGES AGAINST MOYANE
The nine-page charge sheet dated May 2‚ 2018‚ against Moyane‚ reveals that he stands accused of “having committed misconduct in violation of your duties and responsibilities as Commissioner of SARS” in terms of the SARS Act‚ Public Finance Management Act‚ SARS Code of Conduct and the Constitution.
The allegations against him include:
That he “grossly mishandled” the Financial Intelligence Centre report‚ given to him in May 2016‚ about “suspicious transactions” involving SARS Chief Officer for Business and Individual Tax Jonas Makwakwa and his girlfriend‚ Kelly Ann Elskie. The FIC referred the report to SARS to determine whether there was evidence that the pair were involved in tax evasion‚ money-laundering‚ corruption and/or violations of the PFMA.
That this alleged gross mishandling involved Moyane failing to take “any rational or effective action” in response to the report and failing to report “promptly or at all” the report’s “serious” allegations to then Minister of Finance Pravin Gordhan or the Hawks.
That Moyane disclosed the contents of the FIC report to both Makwakwa and Elskie‚ and then allowed them to keep rendering services to SARS. Moyane also stands accused of repeatedly asking the FIC to provide information to the pair’s lawyers about the allegations against them when he “ought to have known” they were not entitled to that information.
That‚ only after the FIC report was published by the Sunday Times in September 2016‚ Moyane approved and signed off terms of reference for an investigation that were “wholly inadequate to ensure an effective investigation into the Report”.
That he failed to ensure that SARS conducted a tax evasion investigation into Makwakwa and Elskie‚ and failed to ensure that investigators PricewaterhouseCoopers were given access to the pair’s issued cell phones and computers‚ as well as accounting records and bank accounts crucial to their investigation.
That in November 2017‚ he lifted Makwakwa’s suspension and allowed him to return to work “notwithstanding the pending investigations and inconclusive investigations in respect of many of the issues raised in the Report”.
That Moyane’s “gross mishandling” of the FIC report “bought SARS into disrepute and caused serious damage to the credibility and legitimacy of the institution”.
That‚ between July 2016 and November 2017‚ Moyane took a decision to pay “performance bonuses” to managerial employees of SARS without the approval of then finance minister Pravin Gordhan. This caused the Auditor-General to find SARS guilty of “internal control deficiency and irregular expenditure‚ causing reputational harm to the institution”.
That Moyane misled Parliament twice: once in relation to the investigation into Makwakwa‚ and‚ in March this year‚ by claiming that he had no involvement in SARS procurement processes “whilst knowing this not to be true”.
That‚ on May 7, 2015‚ he instructed SARS official Helgaard Lombard not to cooperate with the KPMG investigation into the SARS High-Risk Investigation Unit (the so-called “Rogue Unit”) by “instructing Mr Lombard to feign illness on the day he was scheduled to be questioned”.