Former Sars official Johann van Loggerenberg is seen in the Pretoria Magistrate's Court, 9 April 2018. Picture: Jacques Nelles
A wide-ranging commission of inquiry into tax administration and governance by the South African Revenue Service (Sars) under retired Justice Robert Nugent was announced yesterday by President Cyril Ramaphosa.
It’s only taken a very public spat between Ramaphosa and Sars commissioner Tom Moyane, the resignation of Jonas Makwakwa following a damning report by the Financial Intelligence Centre, the humbling of the Sunday Times over the now accepted-as-false “rogue unit” narrative and the commensurate high-level resignations from Sars followed by what many claimed to be false charges against three former employees to bring the inquiry about.
All the aforementioned followed on the heels of the now discredited KPMG report, the seemingly faulty and criticised Sikhakhane report, and an apparent concerted effort by former Hawks head Berning Ntlemeza and Moyane to prosecute suspects former Sars deputy commissioner Ivan Pillay, Sars’ group executive of projects, evidence management and technical support Johann van Loggerenberg, and the first head of the Sars National Research Unit, Andries “Skollie” Janse van Rensburg.
Not forgetting of course, the fightback from Minister Pravin Gordhan when Ntlemeza was targeting him over the “rogue unit” and, over the years, hundreds of resignations from Sars.
According to a press release by Sars, in 2013/14 there were 645 resignations, followed by 607 in 2014/15, then 452 in 2015/16 and 391 in 2016/17.
Nugent, who will be assisted by Michael Katz, advocate Mabongi Masilo, and Vuyo Kahla, has until 30 September to submit his first report, and 30 November to submit the final report.
It gives the inquiry only 135 working days to investigate and report back on myriad subjects, including the adequacy and legality of steps taken by Sars – or failure to take steps – to improve revenue collection, in ensuring that the Prevention and Combating of Corrupt Activities Act, Financial Intelligence Centre Act, South African Revenue Service Act, Customs and Excise Act, the Tax Administration Act and “other applicable legislation” was adhered to.
The commission must also investigate whether “Sars information was deliberately compromised by the omission or withholding of information that the Sars leadership was aware was critical or necessary to ensure a fair and transparent investigation”.
Which is at least one place where Pillay, Van Loggerenberg and Janse van Rensburg come in.
“As a general principle, I can state that should I be in a position to assist the Commission of Inquiry in any way, whether by way of submissions, as a witness and/or complainant and/or victim and/or in any other way, I shall do so lawfully and in order to advance the interests of justice and that of the public,” Van Loggerenberg said.
“I have been on record since 2014 stating that there were multiple persons with nefarious agendas behind the initial attack on me, later on against other former and current Sars officials, a small Sars investigative unit and ultimately on Sars as an institution itself, with others joining the fray as time moved on.”
Van Loggerenberg said the attacks had taken on a discernible pattern of slanderous, false and ever-morphing allegations, usually leaked to the media, which led to sensational headlines and articles.
“These in turn would be ‘investigated’ and in so doing, fulfil self-prophesied rumour. I have always maintained that the so-called panels assigned to ‘investigate’ these and their subsequent, supposed ‘findings’ and ‘reports’ (namely the Sikhakane panel report, the Kroon advisory board statement and the KPMG report) were all profoundly flawed in fact and law in more ways than I can mention here.
“As a fact, not a single one of these ‘panels’ had ever afforded any of those they judged a fair hearing or right of reply before concluding their processes. Their ‘reports’ not only failed to reflect the truth and twisted and misconstrued matters but omitted significant facts which would have led to materially different outcomes had they heard us and afforded us a right of reply,” added Van Loggerenberg.
He said he had consistently cautioned against attaching any value to these “reports” for this reason.
“Even when it became public knowledge that the content of their ‘reports’ was externally influenced, factually incorrect and highly questionable, and, despite attempts by me and others to engage with them to rectify this, none of them took the effort to do so. They have caused significant harm to individuals and families, Sars as an institution and by implication our nation and the economy. Importantly, none revealed the culprits behind these smear attacks, those who maliciously advanced the so-called rogue unit propaganda or their motives,” said Van Loggerenberg.
“As a result, evidence of serious crimes that implicated several of the protagonists behind the ‘rogue unit’ propaganda was suppressed and in some instances led to significant losses to the fiscus and the criminals getting away. A pernicious side-effect has also been the manner in which certain taxpayers in dispute with Sars have opportunistically sought to capitalise on these flawed reports by seeking to rely on them in litigation as if they are irrefutable fact.
“My hope is that this Commission of Inquiry will ultimately do what none of these ‘panels’ did: finally unearth the truth and hold those behind all of these events accountable.”