SARS Wars: Tom Moyane's multiple storms

We cannot know what SARS Commissioner Tom Moyane was thinking when he walked into the Brooklyn SAPS charge office on May 16, 2015 and told police there that a crime had occurred at the SARS leafy compound in Nieuw Muckleneuk, Pretoria, some time after May 4, 2007.

Two years after the fact at Friday’s press conference Moyane tried to backpedal frantically, punting alternative facts and denying that he had opened the case against Finance Minister Gordhan specifically.

“I did not open a case against Minister Gordhan. That is a misplaced narrative. I never mentioned the minister’s name; you can ask the Hawks and you can ask the police. Any suggestion otherwise are lies,” said an indignant Moyane.

That the Hawks – with head Lieutenant-General Mthandazo Ntlemeza being branded “dishonest” by a judge and SAPS, with acting National Commissioner Khomotso Phahlane accused of lying to Parliament – face a credibility deficit at present seems to have escaped the commissioner.

This is a world, of course, where names are almost never mentioned. There is a nod and a wink. The paper trail seldom leads back to where the orders emanate from in the first place. But the problem, of course, in a desperate situation when not everyone’s on the same page or thinking clearly, is that the throttled truth will out... eventually.

Which is what happened on March 2, 2016 when Minister of Police Nathi Nhleko and Minister of State Security David Mahlobo called a press conference in relation to a list of 27 amateurish questions about an alleged SARS “rogue unit” Hawks head Ntlemeza had personally sent to Minister Gordhan a few days before he was to deliver his Budget speech in 2016.

At that conference, Nhleko confirmed Moyane had laid the original charge in 2015 after receiving “confessions” from members of the alleged unit. And while Gordhan might not have been named, he became a moving target in an almost year-long political witch hunt.

One of the first visits Pravin Gordhan made after being parachuted back into the Ministry of Finance in late 2015 after President Zuma’s surprise Cabinet shuffle, was to SARS headquarters in Cape Town where he, as Moyane’s political principal, requested the commissioner to halt his extensive restructuring of the organisation.

By then at least 55 senior officials had left SARS since Moyane’s appointment by President Zuma in 2014 and in January 2016 senior officials up to level seven where ordered to reapply for their jobs. The subsequent purge has left SARS vulnerable with regards to its criminal investigative capacity.

Gordhan, in February 2016 and seeking to minimise the collateral damage of Moyane’s restructuring, delivered an ultimatum to President Zuma asking Moyane to be fired and for the Hawks to be called off. Zuma, unsurprisingly, chose to let the matter simmer.

On Friday, after Gordhan had delivered his Budget speech earlier in the week and had flagged the under-collection of R30.4-billion in revenue, followed by the leak of acrimonious letters between Moyane and Gordhan, the lid blew off as a furious Moyane attempted to claw back some authority in the eyes of SARS staff and the increasingly irritated taxpaying public at large.

The life and times, however, of Brooklyn CAS 427/05/2015 are still relevant to the now bare-fisted political brawl between those seen to be supporting President Zuma and his eye on the guarded portals of the Treasury and those in the “Gordhan camp”.

It was City Press investigative journalist Abram Mashego who first tracked the birth, death and remarkable resurrection of CAS 427/05/2015 which later came to be used as a blunt instrument by the Hawks and the NPA.

This is the case number that was initially referenced in the list of 27 questions to Gordhan and it cropped up again later – recycled by then – in the unsuccessful attempt by the NPA to charge Gordhan, former acting Commissioner Ivan Pillay and Commissioner Oupa Magashula with alternative charges of fraud.

Mashego traced how CAS 427/05/2015, which at first was assigned to a junior detective before being declared “closed” on December 30, 2015, was reanimated by Ntlemeza (keeping Minister of State Security David Mahlobo in the loop, naturally) before finally ending up in the clumsy hands of Brigadier Nyameka Xaba, head of the Crimes Against the State Unit (the Gestapo wing of the Hawks, according to IPID head Robert McBride).

Xaba would later be implicated in the hostage drama in October 2016 involving SARS deputy director of legal policy division, Vlok Symington, who was held against his will in a boardroom when Xaba, accompanied by Moyane’s bodyguard Thabo Titi, attempted to retrieve a damning e-mail from David Makapela of SARS’s law firm Mashiane, Moodley and Monama, refusing to co-operate in the investigation for “ethical reasons”.

Xaba, and three other Hawks officials are currently being investigated by IPID on a charge of kidnapping as a result of that little scuffle.

In the end Brooklyn CAS 427/05/2015 crashed and burned when NPA head Shaun Abrahams withdrew the charges after learning that the Hawks (and perhaps Moyane himself) had withheld Symington’s crucial exculpatory memorandum approving the early retirement of acting Commissioner Ivan Pillay.

Gordhan, Pillay and Magashula, said Advocate Paul Hoffman of the Institute for Accountability in Southern Africa at the time, could successfully pursue a civil claim against Moyane for malicious prosecution.

“He laid the complaint and tailored it to look like there was a case … He did not give the full file of relevant documentation to the cops,” Hoffman said.

Hoffman told Daily Maverick, “If Moyane can’t take the heat in SARS he should stay out of the financial kitchen. Moyane’s denials that he laid the complaint against Gordhan appear to be false; both the Hawks and the NPA have stated that he is the complainant and he has not hitherto denied that this is the position. Is he now implying that the heads of the NPA and of the Hawks are liars? Why has he not corrected them previously? Or complained that they are spreading falsehoods about him?”

The case has now boomeranged all the way back to Moyane who has denied laying it in the first place.

But Moyane, it appears, is at present wrapped in the same teflon shrinkwrap as President Jacob Zuma and has pleaded with the president to come to his defence against Gordhan’s perceived attacks. But the commissioner will just have to wait in the queue as there are a few others currently scrambling for the president’s ear including suspended NPA officials Advocates Nomgcobo Jiba, Lawrence Mwrebi and Abrahams himself, who have all had to justify why they should not be suspended.

But it is Moyane’s action or lack of action with regard to the serious allegations by the Financial Intelligence Centre that his deputy, Jonas Makwakwa and his girlfriend, Kelly Ann Elskie, had deposited suspicious amounts into their personal bank accounts that might be Moyane’s undoing in the end.

So far the SARS commissioner has not provided any satisfactory explanation for why he sat on the Makwakwa FIC report for over four months, had in fact informed his trusted No 2 that he was being investigated and only sprang to action when media reports of the FIC investigation emerged, months later.

Makwakwa had been placed by Moyane as the head of the Large Business Centre – a key revenue division of SARS that deals with high-net worth individuals and corporate tax – as part of the commissioner’s restructuring.

Moyane has, to date, not revealed which cases Makwakwa had oversight over during his tenure in the powerful position and also what Makwakwa’s role might have been in the withholding of the Symington memorandum.

In the meantime, turns out Makwakwa has faced a disciplinary hearing while on suspension as the “suspicious amounts” investigation continues and for allegedly interfering in the tax matters of Durban’s “teflon” billionaire couple Shawn and S’bu Mpisane. A SARS official whom Makwakwa had summoned to meet with the Mpisanes got cold feet and reported the matter.

However, it is only a matter of time before the SARS commissioner will find himself featuring as the main event in a courtroom.

Corruption Watch has lodged charges for his potential violation of section 29(4) of FIC Act which prohibits the disclosure of suspicious and unusual transactions to certain people, but specifically those implicated in such reports as well as section 34 of the Prevention and Combating of Corrupt Activities Act which compels Moyane, as chief executive officer and the commissioner of SARS, to report knowledge or suspicions of corrupt transactions over R100,000 to the Hawks for investigation in terms of section 34 of the Prevention and Combating of Corrupt Activities Act.

And the Hawks and Ntlemeza have also yet to explain why the Crimes Against the State Unit are not investigating Makwakwa or Elskie or even Moyane and why a private legal firm, Hogan Lovells, is doing so.

On Friday, Moyane said that he had appealed to Minister of State Security David Mahlobo, to investigate the leak of the letters between him and Minister Gordhan.

Moyane appears, Trump-style, extremely concerned that SARS at present is spilling like an under-maintained sewage works in Mpumalanga when the regular leaks with regard to the SARS “rogue unit” that were made to the Sunday Times left him seemingly indifferent and unconcerned about the damage this would wreak on the key institution.

It is a question Moyane certainly needs to be asked.

SARS might not be mortally wounded when it comes to the thousands of dedicated men and women, the technocrats, the civil servants who understand the absolutely crucial role of SARS, but a head juggling so many political hot potatoes cannot be good for business.

And while Moyane might attempt to explain away the R30.4-billion shortfall or the R4-billion VAT refunds that have been held up (reportedly to boost figures) in broad technocratic strokes, the once frighteningly efficient SARS is a shadow of its former self both with regard to its legitimacy and reputation.

Said Advocate Hoffman; “The damage being done to the probity and integrity of the SA economy due to the spat in high places between Moyane and Gordhan is something that the country can ill afford as it exacerbates the prospects of a ratings downgrade that will bring the country to its financial knees. Hopefully Zuma knows this and knows what actually needs to be done to lance the boil.” DM

Photo: SARS Commissioner Tom Moyane (Photo by Financial Mail)