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After a harrowing 2018, Sars set for a fresh start

2018-12-22 12:48

The SA Revenue Service (Sars) faces the prospect of a fresh start in 2019 – after a harrowing year of shocking revelations – as the tax agency is set to get a new boss.

The rot that was left to grow and fester at the institution was revealed to the public in graphic detail at the commission of inquiry into tax administration and governance at Sars – and the numbers bore this out: Sars missed its revenue targets by billions of rands.

In March, President Cyril Ramaphosa suspended Sars commissioner Tom Moyane and in November, following an interim report released by the Sars inquiry – headed by retired Judge Robert Nugent – Ramaphosa axed Moyane in accordance with the report’s recommendation, bringing an end to his divisive, hostile management of the revenue service.

Moyane was appointed Sars boss in September 2014 and over the four tax years he oversaw, he missed revenue targets by a combined figure totalling almost R100 billion.

His axing was backed up earlier this month in the Pretoria High Court, where Judge Hans Fabricius ruled that, in effect, Moyane had no valid case to get his job back.

The ruling was the fifth consecutive legal loss for Moyane and his legal counsel, all to do with their challenging the validity of both his axing and of having his disciplinary inquiry – headed by Advocate Azhar Bham – run concurrently with Nugent’s inquiry into governance at Sars during Moyane’s tenure.

The five legal losses are as follows: Bham and Nugent separately turned down Moyane’s applications; the Constitutional Court denied Moyane the right to have his dismissal overturned and to stop Ramaphosa from appointing a new Sars commissioner; Fabricius denied Moyane’s application that Advocate Wim Trengove be recused from acting for Nugent; and Fabricius threw out all of Moyane’s applications, opening the way for a new Sars boss to be appointed.

Following Fabricius’ ruling, Finance Minister Tito Mboweni posted an advert calling for candidates to apply for the post of Sars commissioner. Applications close on January 18. “The successful incumbent will be an individual who reflects the highest professional standards … with high levels of professionalism, integrity and accountability,” the advert reads.

A relevant degree in finance, law, economics, tax or accounting is required to fill the key Sars position, with a postgraduate qualification being an added advantage.

A minimum of 10 years’ senior management experience within the financial sector is a prerequisite.

The winning candidate will serve a five-year term.

In its final report this month, the Nugent commission said that the “massive failure of integrity and governance” at Sars should never happen again.

Keith Engel, CEO of the SA Institute of Tax Professionals, which has about 8 000 members, said the winning candidate may be politically connected to Ramaphosa’s camp in the ANC, a technocrat from within Sars, or a tax professional with management experience from the private sector.

Suspended Sars commissioner Tom Moyane Picture: Collen Mashaba/File

A tax professional, who wished to remain anonymous, said the talk in tax circles was that Ramaphosa would ultimately appoint a politically connected person as Sars boss.

Engel, who previously worked for National Treasury, where he played a leading role in revising tax laws, said Ramaphosa was likely to hold off on appointing a new head of Sars until after the 2019 general election – because the strength of the mandate he received from the poll could determine which Sars candidate he could appoint. He added that the race to be the new Sars boss was “wide open”.

Engel said Sars needed someone with a strong tax background, given the complexities involved.

He predicted that many would apply for the job, citing names such as Luther Lebelo, former deputy finance minister Mcebisi Jonas and Edward Kieswetter.

Regarding Lebelo, the Sars group executive for employment relations, Engel said his closeness to Moyane and revelations about dodgy payments made under Lebelo’s watch at the Sars inquiry could count against him.

Engel said Jonas would be a political appointment, while Kieswetter, a former Sars official, would be viewed as neutral, given that he had been out of the institution for a while. Other people named as possible candidates by Engel include the following:

. The former head of Sars’ large business centre, Sunita Manik, as she had previously held a senior post at Sars;

. National Treasury’s deputy director-general for tax and financial sector policy, Ismail Momoniat, because of his understanding of tax matters; and

. The chair of Parliament’s standing committee on finance, Yunus Carrim, because of his political credentials.

While the next Sars head could come from the private sector, that was probably a long shot, Engel said.

He said it was of critical importance that the new commissioner be a unifier, since people loyal to Moyane still held sway in many key positions at the tax agency.

The new head would also have to embark on a process of turning around the agency, Engel said.

Read: Judge calls Moyane's conduct 'reprehensible and abominable'

The current acting Sars commissioner, Mark Kingon, was apparently not in the running, said Engel, because it appeared as if he was not on the “right side of the politics” – despite Kingon having earned the respect of the tax practitioner community and many others within Sars.

Kingon has been acting Sars boss since March, when Ramaphosa suspended Moyane.

In an odd twist, earlier this month, corruption charges were filed at a Pretoria police station against Kingon by an obscure organisation named the Anti-Poverty Forum (APF), according to News24.

The charge was laid by APF’s director, Phapano Phasha.

In his affidavit, Phasha claimed that Kingon was guilty of gratification for allegedly agreeing that a settlement be paid in the matter of Vlok Symington, an in-house Sars lawyer.

Engel said Kingon was viewed as being “anti Moyane”, given his testimony at the Sars inquiry, during which he clearly distanced himself from Moyane and his support for Symington, rather than being a neutral figure.

“Politics aside, Mark could be the most qualified person for the post,” he added.

Deborah Tickle, a professor at the University of Cape Town and a member of the Davis Tax Committee, said her number one candidate for the job would be Kingon – because he had spent more than 30 years at the agency and “his heart is in the right place”.

Since he had become acting Sars boss, there had been a few noticeable positive changes, Tickle added.

However, she added, Kingon did not necessarily tick the box when it came to the politics of the job.

Tickle said another “excellent choice” would be former Sars deputy commissioner Ivan Pillay.

A tax professional, who wished to remain anonymous, said the talk in tax circles was that Ramaphosa would ultimately appoint a politically connected person as Sars boss.

However, Pillay faces charges related to the role he allegedly played in the so-called Sars rogue intelligence unit and needs to clear his name.

Meanwhile, Moyane is continuing with his battle to get back his Sars job by again applying to the Constitutional Court on Thursday – this time, for leave to appeal Fabricius’ judgment, handed down on December 11.

In his appeal, Moyane says: “The learned judge erred in many respects. Apart from having been appointed by former president [Jacob] Zuma and being hated by the media and others, what wrong has Mr Moyane actually done to deserve being stripped of all constitutional rights? The angry tone of the judgment, reminiscent of the anger ... displayed by Judge Nugent against the applicant, is an additional factor which indicates good prospects before a dispassionate Bench of more than a single judge.”

Moyane gave reasons for not approaching the Supreme Court of Appeal before filing legal papers with the Constitutional Court. “Given the time frames, it would take too long for this matter to reach its final destination and it is highly likely that the issues would have become moot along the way,” he said.

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May 19 2019