POLITICS

SARS: Why Did International Law Firm Water Down Investigation Into Makwakwa?

Hogan Lovells backpedalled on an investigation, which has allowed an alleged money-launderer to take up a pound seat at SARS.

22/11/2017 06:26 SAST | Updated 22/11/2017 06:27 SAST
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Finance Minister Malusi Gigaba during the South African Revenue Services' preliminary revenue collection results announcement on April 03, 2017 in Pretoria, South Africa. SARS commissioner Tom Moyane revealed the revenue collected R1.14-trillion during the 2016/17 fiscal year.

New evidence has emerged that law firm Hogan Lovells backpedalled on an investigation, which has allowed an alleged money-launderer to return to run SARS.

Last month, SARS commissioner Tom Moyane returned Jonas Makwakwa to his role as the chief officer for business and individual taxes and technology. This is a crucial position at the revenue authority and one that makes him second in command, but Makwakwa faces an investigation into alleged money-laundering as well as a potential corruption investigation.

Four global multinationals have become ensnared in South Africa's story of state capture: Bell Pottinger (for devising a misinformation campaign for the Gupta family); KPMG (for producing a report that allowed the purge of SARS's former leadership); SAP (the IT services provider alleged paid commissions to companies in the Gupta family network) and McKinsey (the management consultancy played footsy-footsy with the Gupta-linked company Trillian to win R1.6-billion worth of business Eskom now says was illegally won).

Is Hogan Lovells playing in the same ballpark?

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Makwakwa is facing an investigation for corruption and money-laundering by the Hawks, but was cleared in an internal disciplinary hearing chaired by a Durban advocate after the Hogan Lovells investigation. The Hawks investigation was triggered by a 2016 Financial Intelligence Centre (FIC) report on the suspicious transactions red-flagged in Makwakwa's and his girlfriend Kelly-Ann Elskie's accounts. The FIC is the regulator of South Africa's strict anti-money-laundering laws.

The terms of reference of the original investigation by Hogan Lovells, obtained by HuffPost SA, reveals how the law firm, with bases in the U.S. and the U.K., watered down the scope of its investigation to allow advocate Terry Motau to let Makwakwa off the hook.

Makwakwa and wife and fellow SARS staffer Elskie were found to have made suspicious cash deposits into their accounts.

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In addition, Makwakwa was found to have enjoyed unexplained transfers from SARS itself and from a company that was the eventual beneficiary of a contract from the department of water affairs and sanitation.

These actions amount to money-laundering, which is a form of tax evasion, say global experts.

In its initial terms of reference sent to SARS in September 2016, Hogan Lovells promised to mount what looked to be a proper investigation into Makwakwa and Elskie. The terms include probing:

- Whether Makwakwa and Elskie have committed acts of tax evasion and other contraventions of tax laws.
- Whether Makwakwa and Elskie received payment in contravention of SARS's internal policies and the Public Finance Management Act.
- Whether this amounted to money-laundering in terms of the Prevention of Organised Crime Act, and
- Whether the funds received by Makwakwa and Elskie constitute payment of proceeds of crime and corruption as defined in the Prevention and Combating of Corrupt Activities Act.

Earlier this month, Hogan Lovells put out a statement that revealed how it altered its own original terms of reference.

"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."

Hogan Lovells did not respond to numerous HuffPost SA queries on why it changed its original terms of reference.

Both Mr Jonas Makwakwa and Ms Kelly-Anne Elskie were not found guilty of any charges levelled against them.Sandile Memela, SARS spokesperson.

SARS told HuffPost SA that it would not place Makwakwa on suspension pending the finalisation of the Hawks investigation into the cash and transferred deposits into his account. But the revenue authority will not say whether or not Makwakwa and Elskie have declared their additional payola to their employer.

"As you are aware, Chapter 6 and especially Section 69 of the Tax Administration Act 2011 makes it a criminal offense to disclose or divulge information about a taxpayer's affairs and, as a result, SARS cannot be seen to be in contravention of the law whether their compliance has been vetted by the employer," said SARS spokesperson Sandile Memela.

Memela added: "SARS wishes to reiterate that Hogan Lovells and Advocate Terry Motau, SC, [have] submitted their reports. Both Mr Jonas Makwakwa and Ms Kelly-Anne Elskie were not found guilty of any charges leveled against them."

Asked if it was true that Elskie had been promoted, Memela said "SARS wishes to dismiss media reports that Ms Elskie was promoted. She was seconded to the legal department, with her original grade, as part of her development after her job was negatively affected as a result of restructuring at the time. Thus the notion that she was promoted to an executive position is false."