Retired Judge Robert Nugent calls for clean sweep at Sars
Politics / 13 February 2019, 5:07pm / Emsie Ferreira
PARLIAMENT - Retired Judge Robert Nugent on Wednesday stressed that he recommended that a new South African Revenue Services (Sars) commissioner review the fitness of the organisation's senior staff because they abjectly failed to challenge the improper conduct of sacked tax boss Tom Moyane.
"One had a period here in which we saw no sign other than compliance with what was happening at Sars," Nugent, who headed the inquiry into tax administration that ordered Moyane's dismissal, told Parliament's standing committee on finance in a briefing on his final findings made in December.
"We suggested the commissioner should review his senior staff and determine whether there are people who can inspire public confidence in Sars."
He said that the current acting commissioner Mark Kingon appeared "rather hobbled" because he was not in a position to drive through major changes, such as updating the tax service's technology, firstly because he was on a 90-day contract and secondly because he lacked staff he could trust.
"The acting commissioner is having a lot of difficulty with some of the people who have to be advising him," he added.
Nugent made the case for appointing at least one deputy commissioner and legally obliging the commissioner to name an executive, on which the deputy should serve.
It was critical that the deputy could not be removed "at whim" by the commissioner, he said, who would then remain in place should he move to fire the rest of the executive.
"There should be somebody appointed there who the commissioner can't simply get rid of," Nugent said.
The proposals were all meant to place checks and balances on the powers of the commissioner, in the wake of what Nugent termed a "massive failure" of governance and ethics under the reign of Moyane.
Nugent has recommended that the national director of public prosecutions (NDPP) investigate whether Moyane should face fraud charges for making false representations that led to the appointment of Boston-based consultancy firm Bain & Co to draft a new business plan for the revenue service.
He pointed to Moyane's failure to inform then finance minister Malusi Gigaba that he had been in talks with Bain for about a year before he asked for outside advisors to be appointed.
"The letters written to the minister were positively misleading."
Moyane on Tuesday, suffered yet another legal setback in his attempts to overturn his firing by President Cyril Ramaphosa at the recommendation of Nugent, when the Constitutional Court denied him leave to appeal a court ruling dismissing an earlier challenge to his dismissal.
The Nugent report further recommended that an inspector general for Sars be created to whom staff can turn if organisational trouble were again to surface within the revenue service. Nugent cited the case of former Sars spokesman Adrian Lackay who was sued by Moyane for defamation for a letter he sent to the finance committee to blow the whistle on the crisis and cover-ups at Sars.
His statement that the committee did nothing to help Lackay hit a nerve with committee chair Yunus Carrim who suggested he should have approached the tax ombudsman. But Nugent replied that this office was there to serve the public, therefore the need for a small, nimble inspector generals office who could handle complaints from Sars staff.
Nugent noted that his recommendation had been that the findings of the independent panel that considers nominees for the post of commissioner should be made public so that the president would face questions if he ignored these. It was part of attempts to depoliticise the appointment process.
"You politicians can choose your battle grounds in other areas, but leave Sars out of it. Sars should not be a political battle ground."
It was announced last week that a panel, headed by former finance minister Trevor Manuel, has been appointed by Finance Minister Tito Mboweni to interview candidates for the job currently held in acting capacity by Mark Kingon.
Members of Parliament (MPs) appeared divided on the recommendation in the Nugent report that Sars should have an investigative capacity to deal with illicit trade.
Nugent singled out the losses illicit trade was inflicting on the public purse, adding: "There is nothing wrong with Sars undertaking covert activity."
He said it was not up to him to decide whether an intelligence had existed within Sars and whether it had gone "rogue", as Moyane claimed.
His concern was whether the establishing of such a capacity was lawful and he made the recommendation after ascertaining that there was no law against it.
"I kept asking why it was unlawful," Nugent said, recalling that Judge Frank Kroon had conceded before the inquiry that he had simply blindly endorsed the earlier finding to this effect in the Sikhakane report.