13/03/2018 04:56 SAST | Updated 13/03/2018 06:24 SAST

Getting Rid Of Sars' Tom Moyane? It Ain't That Easy...

Even though the Sars commissioner is at the heart of various allegations, there are no clear provisions to hold him accountable.

South African Revenue Services commissioner Tom Moyane.
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South African Revenue Services commissioner Tom Moyane.

South African Revenue Service (Sars) commissioner Tom Moyane will be in the spotlight once again this week, when he gives evidence before the Ntsebeza Inquiry into the controversial KPMG report on the Sars so-called "rogue unit".

Sars executives will also appear before Parliament's standing committee on finance on Tuesday, where they will be grilled over the Jonas Makwakwa debacle. Moyane's name is sure to feature in both instances.

Opposition parties and civil society organisations have long called for Moyane's head, in light of the various scandals surrounding him. But unlike those who lead various Chapter 9 institutions or the National Prosecuting Authority, for instance, South Africa's legislative framework makes no provision for the removal of the Sars commissioner.

READ: Here Are The 5 Most Intriguing Political Situations Where Tom Moyane's Name Appears

This may make Moyane's removal difficult.

In President Cyril Ramaphosa's promise of a "new dawn", which he outlined in his state of the nation address, he said he would take decisive action to restore the credibility of the revenue service.

"I will shortly appoint a commission of inquiry into tax administration and governance of Sars, to ensure that we restore the credibility of the service and strengthen its capacity to meet its revenue targets," he said.

Moyane, then, could be an early victim of Ramaphosa's "new dawn".

READ: Sars Chief Makwakwa Did Receive Almost R1m Bonus, Moyane Now Admits

But unlike the NPA Act of 1998, which outlines precisely how the national director of public prosecutions is to be removed or held accountable, the Sars Act makes no mention of this. And it makes things a little more tricky.

The original Sars Act published in 1997 says the finance minister must appoint the Sars commissioner, but this was amended in 2002, giving the president that prerogative. Neither the original nor the amended version makes provisions for how a commissioner could be removed.

When Moyane's predecessor resigned, former president Jacob Zuma bucked the practice of the finance minister choosing the Sars boss when he intervened to have Moyane appointed commissioner over a shortlist drawn up by then-minister of finance Nhlanhla Nene (who since Ramaphosa's Cabinet reshuffle, of course, is back in that post). Legally, the president signs the appointment, but the practice has been that the incumbent is chosen by the finance minister in an open race.

In the interests of accountability, the Davis Tax Committee – mandated to look at tax policy and Sars' operational structure – recommended in 2016 that government look at amending legislation to have the Sars commissioner report to a board rather than the minister of finance.

Those recommendations are now being taken into consideration.

In his 2018 budget speech, former finance minister Malusi Gigaba said government will respond to the Davis Tax Committee's report and introduce draft legislation this year to give effect to some of its recommendations, "including those on the accountability of Sars to the minister of finance, and the establishment of a supervisory board".

This should, in effect, hold Moyane accountable to another body besides Parliament.

Council for the Advancement of the SA Constitution's executive secretary, Lawson Naidoo, said it is only logical that if the president appoints the Sars commissioner, then the president should be the one with the powers to remove that person.

"In the absence of proper criteria, it is for the president to remove the Sars commissioner. There is a massive oversight in the Sars Act that does not outline provisions for the removal of a commissioner. This should be amended," Naidoo said.

The DA's deputy shadow minister of finance, Alf Lees, said an advisory board for Sars was previously in place, but was then removed.

"The appointment of a supervisory board must happen. It is bizarre that the processes aren't already there. But this is not a train smash. The provision for the appointment of a commissioner should also apply to his or her removal," Lees said.

"We would like for a specific process to be embedded in the law, but the absence of this is not an excuse for Ramaphosa not to remove Moyane."

News24 reported on Monday that legal representatives of Ivan Pillay, Johann van Loggerenberg and Andries Janse van Rensburg – three ex-Sars executives who allegedly played a role in the so-called "rogue unit" – have written to the NPA requesting that summonses against them be withdrawn.

READ: KPMG Shocker: Audit Firm Disavows Sars 'Rogue Unit' Report, Eight Senior Staff Resign

The three were issued summonses on Friday to appear in the Pretoria Regional Court on April 9 on charges of corruption and contravention of the Rica Act.

Last year, KPMG released a bombshell statement in which it withdrew its investigation into the so-called "rogue unit". Moyane seemingly used the report in part as the basis for his alleged witch-hunt of the unit in 2014 and 2015. It led to the dismantling of the unit and the departure of numerous senior staff members and experienced forensic investigators.