Former chief operations officer of Bosasa Angelo Agrizzi   Photo: African News Agency (ANA)
Former chief operations officer of Bosasa Angelo Agrizzi Photo: African News Agency (ANA)

NPA must follow money trail first to nail the corrupt

By Jerry Bootha and Jean du Toit Time of article published Feb 14, 2019

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The arrival of Angelo Agrizzi at the state capture commission has been nothing short of spectacular.

The testimony of the former Bosasa chief operations officer implicates a horde of people in several corruption scandals that have long been suspected.

We now have a smoking gun and the nation’s gaze turns to the National Prosecuting Authority (NPA) to see if it will capitalise on Agrizzi’s birdsong.

The public want to know whether someone will finally end up behind bars now? The truth is that even with Agrizzi’s evidence, damning as it may be, an outright conviction on criminal charges such as corruption, bribery or fraud is at this stage improbable.

The State’s onerous burden of proof, the complexity of these crimes and the resources required to investigate them are a few of the factors, and it can take the NPA years to build a robust case. Even then a conviction is by no means guaranteed.

If some media reports are to be believed, they have been sitting on matters for 10 years, so it does not take too much imagination to see that they will rather have the perpetrators die of old age before letting them have a day in court.

However, the SA Revenue Service (Sars) has made clear its intentions when it announced that it will investigate Agrizzi’s allegations insofar as they relate to tax evasion.

“Sars is concerned that names of some former employees have been mentioned in alleged wrongdoing and would like to assure taxpayers and the public that these will be investigated without fear or favour and guilty persons will be brought to book,” the service says.

Hopefully, the NPA has taken notice of the revenue service’s interest. It would not be a bad idea for the NPA just to hitch its wagon to Sars. Lest anyone forget, Al Capone, one of the most publicised racketeers of the 20th century, was not convicted for his most notorious crimes - but for tax evasion. 

Federal prosecutors worked for years to build a case against Capone but could never gather enough evidence for a conviction. He was eventually convicted for tax evasion.

Tax evasion is a more attainable conviction because proving the elements of the crime is easy compared to, for instance, corruption. Tax evasion requires that there was a receipt of anything with an ascertainable money value that was not disclosed to Sars. 

It is a crime that does not concern itself with the legality of the receipt, the purpose thereof, by whom it was paid or what it was used for. It simply asks: was it taxed? It is unlikely that any of the “payments” made were disclosed by Bosasa or their recipients.

The new National Director of Public Prosecutions (NDPP), Shamila Batohi, should consider a visit to acting Sars commissioner Mark Kingon.

His investigators are presumably already examining where these payments are shown in the books, adding back the numbers and raising PAYE assessments plus 200% penalties.

Where the NDPP follows the money, early convictions for tax evasion will give her much-needed quick successes. That is not to say that the NPA should not eventually pursue other, perhaps more serious, charges. In fact, this will give the NPA time to build an unassailable case on other charges.

This strategy ensures a slam-dunk and it is quite possible that it may lead others joining Agrizzi’s choir once they have been pinned on tax evasion to strike a deal that may lead to the bigger fish ending up behind bars.

Botha is a managing partner at Tax Consulting SA and Du Toit is a senior attorney at Tax Consulting SA

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