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SARS ‘rogue unit’ – Mkhwebane and Mpofu flog bones of a long-dead horse at hearing

SARS ‘rogue unit’ – Mkhwebane and Mpofu flog bones of a long-dead horse at hearing
Marianne Thamm
By Marianne Thamm
29 Mar 2023
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The expectation by now would be that the matter would have been laid to rest, the grave filled and the tombstone erected after SARS itself, in November 2022, issued a public apology to former officials caught up in the attack on the institution.

South Africans have lived with the infamous SARS “rogue unit” epic for almost a decade now.

At times it has felt like Groundhog Day. We’re back at the start after nine years of picking over every inch of the strange beast, leaving only a bleached skeleton.

The expectation by now would be that the matter would have been laid to rest, the grave filled and the tombstone erected after SARS itself, in November 2022, issued a public apology to former officials caught up in the attack on the institution. 

Employees, according to SARS commissioner Edward Kieswetter, “who were adversely affected by the actions taken by SARS, and certain third parties, during 2014 to 2018”.

Not only was an apology issued, but a settlement was also reached after an “extensive enquiry into the matters that transpired at SARS, including the allegations that a unit, set up in 2008 to counter the illicit economy, had been established unlawfully” found no basis for the allegations. 

Said Kieswetter in no uncertain terms: “SARS recognises that these reports [Sikhakhane, KPMG, Kroon, etc] should not have been used as a basis for any of the actions taken against the affected participants and other SARS officials.” 

The commissioner continued: “Unfortunately, because SARS itself became the victim of State Capture in this period, SARS acknowledges that it failed to defend and protect its employees when the false allegations and imputations of wrongdoing resurfaced in October 2014 and in the subsequent years thereafter.” 

Private investigations


Even Hogan Lovells, the consultancy tasked by SARS in 2016 to investigate the former chief officer for business and individual taxes Jonas Makwakwa — accused of stealing more than R1.7-million from state reserves — returning a report which SARS Commissioner Tom Moyane used to clear his No 2 of misconduct, has apologised.

In January 2023, six years later, Hogan Lovells issued a statement declaring that it now realised it had “found its name connected to State Capture as a result of work that former partners performed for SARS”.

Read more in Daily Maverick: Legal multinational Hogan Lovells apologises for role in State Capture and exoneration of senior Sars officials

Then there is the disgraced Bain & Company, which has also publicly apologised for enabling Moyane to move through SARS like Jacob Zuma’s personal wrecking ball.

Francis Herd, writing in Daily Maverick on 23 March, noted that while Bain & Company is banned from doing business with the South African state, “the UK has lifted a three-year ban on the Boston-based consultancy less than eight months after it was imposed”.

Read more in Daily Maverick: Why Bain & Co should not get a free pass

Prising open the vault 


On Wednesday, at the resumption of her Section 194 impeachment inquiry, Busisiwe Mkhwebane and her legal representative Dali Mofu dug up the “rogue unit” corpse.

The suspended Public Protector and her legal representative have put to the test the old maxim that democracy requires great patience, as Wednesday was spent returning to ground long since covered.

There have been a few new twists, however. Mkhwebane has insisted that she did not conceal from anyone that she had been in possession of a classified Inspector-General of Intelligence (IGI) report on which she based her SARS report.

Mkhwebane said her visit in January to the offices of the then IGI had been to “authenticate” the classified report but the IGI’s legal adviser, advocate Jay Govender, has dismissed this version.

Govender has also confirmed to the committee that Mkhwebane’s possession of the report — dropped off by Economic Freedom Fighters Deputy President Floyd Shivambu — was unlawful.

Mkhwebane has now said she did not list the IGI report in her Rule 52 court record as she was “security conscious” and did not want to expose the names of government officials working undercover.

At the start of the day’s proceedings, evidence leader advocate Nazreen Bawa announced to the committee chair, Qubudile Dyantyi, that she wished to begin her questioning of Mkhwebane “at this juncture”.

She was asking because “there is a lot of matter before this committee and I would like to do this while this is fresh in their minds”.

While Dyantyi agreed with Bawa about “the bulkiness” and that she had been persuasive, he said he preferred to stick with consistency, and so it was back to the graveyard.

When Bawa gets to the bones there is bound to be an even deeper drill until nothing but dust remains.

Ramaphosa on my mind


Mkhwebane and Mpofu, who have insisted her suspension by President Cyril Ramaphosa was because she was investigating him, used the morning to remind “the public out there” of the CR17 investigation.

Mkhwebane said she had found about R1.2-billion all-in-all that had flowed into Ramaphosa’s election kitty. She had concluded her report using all the evidence available before her, which had pointed to money laundering, she insisted.

She denied altering the wording of the Executive Members’ Ethics Act to suit her case.

By not calling Ramaphosa as a witness, said Mkhwebane, “it means my version will be the only version that is before you and the evidence I am presenting currently, this was done with honesty. I was doing my work the best way I know.

“We are sitting here because of the so-called untouchables,” she said.

Ramaphosa’s version is, of course, available to the committee in the court documents relating to his Constitutional Court challenge of Mkhwebane’s report.

Read more in Daily Maverick: ConCourt rejects Public Protector appeal over CR17 campaign report

In a majority judgment penned by Judge Chris Jafta, the Constitutional Court agreed with the high court that the President did not “wilfully” misled Parliament in his response to then DA leader Mmusi Maimane.

“A perusal of the Public Protector’s report reveals that she seriously misconstrued the Code,” said the judges.

The judges further upheld the finding of the lower court that the Public Protector was “plainly not authorised” to investigate the affairs of the CR17 campaign, because these did not relate to the activities of an organ of state.

“What is most concerning is the quality of the reasoning leading up to the various findings,” Judge Jafta wrote.

The hearing resumes at 10am on Thursday. DM

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