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Mkhwebane finds no wrongdoing by Sars in probe of Jonas Makwakwa

The public protector has found a complaint by Jonas Makwakwa to be unsubstantiated.
The public protector has found a complaint by Jonas Makwakwa to be unsubstantiated.
Image: SARS

Public protector Busisiwe Mkhwebane on Monday closed a complaint by former SA Revenue Service (Sars) senior official Jonas Makwakwa into an alleged abuse of process during a Sars probe of his financial affairs in 2017.

The public protector found that the issues he complained about were unsubstantiated.

Makwakwa's complaint was one of 13 that Mkhwebane announced she had closed on Monday, as her office could not find any wrongdoing or maladministration.

Makwakwa, who was Sars chief officer for business and individual taxes, resigned for personal reasons in March 2018.

In October 2016, Sars appointed law firm Hogan Lovells to conduct an investigation into allegations of impropriety against Makwakwa.

Hogan Lovells was also instructed to appoint business advisory services company PwC to assist with the investigation, particularly an analysis and audit of evidence of Makwakwa’s financial affairs.

Hogan Lovells submitted a report to Sars in May 2017 recommending that disciplinary proceedings be instituted against Makwakwa regarding his failure to make the required declarations in accordance with the Sars ethics policy.

Makwakwa was cleared of all the charges at disciplinary proceedings chaired by advocate Terry Motau SC.

In his complaint to the public protector Makwakwa charged that the probe by Hogan Lovells and PwC into his tax affairs was irregular and the sharing of his banking and tax information constituted a violation of the Tax Act.

“The reasons for closure [of the complaint] is on the basis that the issues were unsubstantiated,” Mkhwebane said.

She said in her report that the issues considered and investigated included whether the Financial Intelligence Centre improperly launched an investigation against Makwakwa, whether the centre's referral to Sars was in contravention of the Financial Intelligence Centre Act (Fica), and whether Sars abused its power when it sanctioned the investigations by Hogan Lovells and PwC.

“The allegation that the centre improperly launched an investigation against [Makwakwa] in contravention of Fica is unsubstantiated.”

She said 75 cash deposits totalling R785,130 were made into Makwakwa's personal bank account between March 1 2010 and January 31 2016.

She also said that the allegation that the centre's referral to Sars was in contravention of Fica and thus constituted maladministration, was unsubstantiated.

“I could not find any provision of Fica that prohibits a referral to Sars on the grounds that the implicated parties are officials within Sars.”

She said the centre's referral to Sars was also consistent with the objectives and functions of the centre, which included availing and informing Sars about information it had collected, which could help to “facilitate the administration and enforcement of the laws of the Republic”.

Mkhwebane said the allegation that Sars abused its power when it sanctioned investigations against Makwakwa by Hogan Lovells was unsubstantiated.

“The complainant's information, financial or otherwise, was received by Hogan Lovells as a proxy of Sars as the employer and outside the operation of the Tax Act.

“Therefore Sars did not abuse its powers when it sanctioned Hogan Lovells to conduct a disciplinary investigation against the complainant.”

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