Moyane maintains Makwakwa is cleared to return

Sars head, Tom Moyane. Photo: TimesLIVE

Makwakwa, largely regarded as Moyane's right-hand man within Sars, was suspended in September 2016 along with his girlfriend Kelly-Ann Elskie, also a Sars employee.

This after large cash deposits into their bank accounts were flagged by the Financial Intelligence Centre.

Moyane was first made aware of the FIC report in May 2016 and was not supposed to disclose the contents of the report to Makwakwa, but he did.

Makwakwa was only suspended following a report by the amaBhungane Centre for Investigative Journalism which revealed the dodgy dealings.

Makwakwa was suspended for a year while a disciplinary hearing chaired by Advocate Motau SC was conducted. Numerous problems were identified with the hearing, including that Makwakwa was not asked to answer to all the allegations against him.

But on October 30, Sars announced he was cleared of wrongdoing and would be returning to work.

On November 3 the law firm Hogan Lovells, which Sars had hired to investigate whether Makwakwa had contravened Sars conduct policies, released a statement which in part read:

"The scope of the investigation conducted by Hogan Lovells was limited to identifying whether any misconduct had been committed by Makwakwa and Elskie as employees of Sars. It did not seek to directly investigate the financial transactions identified by the FIC. We understand that all criminal related allegations arising from the FIC report were referred to the relevant authorities for investigation."

On Monday, Sars released a statement directly contradicting this, saying it "finds it necessary to address the unsubstantiated tone and the blatant misrepresentation of facts" in media reports subsequent to Makwakwa's return.

Saying it could not allow "such low standards of journalism to go unchallenged", Sars stated the following:

"Firstly, it is not true that Hogan Lovells did not investigate the Financial Intelligence Centre (FIC)'s suspicious transactions. Neither is it true that Hogan Lovells issued a media statement to that effect."

This is in direct contradiction of Hogan Lovells' statement and in fact, the statement that Sars denies exists is still available on the law firm's website.

"All transactions as per the FIC suspicious report were put to Makwakwa to respond [to] and he did. It was those responses which lead to Hogan Lovells concluding that an act of misconduct could not be found from the transactions and their sources," Sars claimed.

According to Sars, a protracted series of events then led to the disciplinary hearing which it says that, contrary to media reports, was handled in an above-board manner.

"The expanded enquiry concluded on August 15 2017 and the outcome was received from the chairperson on October 13 2017," said Sars, adding that Moyane was advised Hawks were still investigating.

"The responsibility to pursue criminal charges in a court of law lies with the National Prosecuting Authority based on investigations by the Saps or the Directorate for Priority Crime Investigations (DCPI).

"Given the outcome of the Sars disciplinary process and the fact that no decision had been taken by DPCI on whether or not Makwakwa should be criminally prosecuted at that time, Moyane was advised that there was no legal justification for SARS not to lift Makwakwa's suspension."

"Any other action would have amounted to a violation of Makwakwa's legal rights as an employee."

According to SARS, it has reserved its right to initiate new internal disciplinary charges against Makwakwa should the criminal investigation reveal wrongdoing.

It adds that Moyane had sought legal advice which informed it would be illegal to release the Hogan Lovells reports.

Moyane has now approached the Parliamentary Standing Committee on Finance asking for a joint process to appoint senior counsel to provide a legal opinion on releasing the reports, or parts thereof.

Both Sars and Hogan Lovells have been approached to provide further clarity.