Moy­ane axed. Now what?

Mark Kin­gon re­mains while pres­i­dent mulls over who to ap­point – with Moy­ane still fight­ing to keep his job

CityPress - - Business - JUSTIN BROWN justin.brown@city­

With Pres­i­dent Cyril Ramaphosa hav­ing dis­missed sus­pended SA Rev­enue Ser­vice (Sars) com­mis­sioner Tom Moy­ane this week, the ques­tion now is: Who will the pres­i­dent ap­point to fill this key post?

Kyle Mandy, part­ner and head of na­tional tax tech­ni­cal at PwC SA, said the most im­por­tant ques­tion when it came to ap­point­ing a per­ma­nent Sars com­mis­sioner would be whether Ramaphosa would opt for a po­lit­i­cal de­ployee or a tech­no­crat.

Act­ing Sars com­mis­sioner Mark Kin­gon, who has been at the helm since March 19 – af­ter Moy­ane was sus­pended as Sars com­mis­sioner – is the lead con­tender from within the tax col­lec­tion agency.

Kin­gon has ex­pressed in­ter­est in tak­ing on the com­mis­sioner role.

Et­tiene Retief, chair­per­son of the na­tional tax and Sars com­mit­tee at the SA In­sti­tute of Pro­fes­sional Ac­coun­tants, said Kin­gon was the man for the job be­cause he had “in­tegrity” and was very knowl­edge­able about the in­sti­tu­tion, which was im­por­tant for the re­build­ing of Sars.

Look­ing out­side the in­sti­tu­tion, there was spec­u­la­tion – as early as March this year – that for­mer deputy fi­nance min­is­ter Mce­bisi Jonas could be in line to be the next Sars com­mis­sioner.

There were also ru­mours that for­mer deputy Sars com­mis­sioner Ivan Pil­lay could make a re­turn to the tax col­lec­tion agency.

How­ever, Pil­lay faces charges and needs to clear his name be­fore he can be con­sid­ered for any job at Sars.

Pil­lay – to­gether with two ex-Sars ex­ec­u­tives, Jo­hann van Log­geren­berg and An­dries Janse van Rens­burg – have been charged with cor­rup­tion and con­tra­ven­tion of the Rica Act by the Na­tional Pros­e­cut­ing Author­ity with re­gard to their al­legedly roles in the so-called Sars rogue in­tel­li­gence unit. All three deny the al­le­ga­tions.

At the Nu­gent com­mis­sion of in­quiry into Sars, wit­nesses have tes­ti­fied about the need for a more ro­bust process to be im­ple­mented in se­lect­ing the next Sars com­mis­sioner and for gov­er­nance to be im­proved ur­gently. An­other call at the in­quiry has been for the Sars boss to be apo­lit­i­cal.

How­ever, any changes to the way the Sars com­mis­sioner is hired will likely only be made by next year at the ear­li­est, as Par­lia­ment will soon be in re­cess, PwC’s Mandy said.

It will be in­ter­est­ing to see what process, if any, Ramaphosa will an­nounce he will fol­low in se­lect­ing a new Sars com­mis­sioner.

An­other op­tion, sug­gested Mandy, would be to ap­point a Sars com­mis­sioner on a short-term con­tract while changes are made to the hir­ing process – but this would not be con­ducive to the sta­bil­ity of the agency.

Who­ever takes up the job will have his or her work cut out to turn around the in­sti­tu­tion, which was wrecked by Moy­ane dur­ing his ten­ure.

This is re­flected in Kin­gon’s tes­ti­mony.

Kin­gon told the Sars in­quiry last month that: “Rarely, if ever, has Sars had to con­tend with weak lead­er­ship, blem­ished in­tegrity, to­tal pub­lic dis­trust of our or­gan­i­sa­tion, se­ri­ous op­er­a­tional lapses and breaches of the higher pur­pose.

“I don’t think we have ever ex­pe­ri­enced, in my his­tory of be­ing in this or­gan­i­sa­tion [for more than 34 years], a mo­ment like we are in to­day. I hope in my ten­ure here we never have to face this again. It is a first for us.

“Our ex­ec­u­tive lead­er­ship is bro­ken, un­sta­ble, wrecked by divi­sion and dis­trust.”

Ramaphosa ter­mi­nated Moy­ane’s ap­point­ment on Thurs­day, fol­low­ing the rec­om­men­da­tion made by re­tired judge Robert Nu­gent, head of the Sars in­quiry, that Moy­ane be re­moved to “fore­stall any fur­ther de­te­ri­o­ra­tion of our tax ad­min­is­tra­tion sys­tem”.

In his in­terim re­port, Nu­gent said Moy­ane’s ten­ure was char­ac­terised by “reck­less” mis­man­age­ment, and that this “ought not to be per­mit­ted to con­tinue”.

“We con­sider it im­per­a­tive that a new com­mis­sioner be ap­pointed with­out de­lay to re­move the un­cer­tainty at Sars and en­able it to be set on a firm course of re­cov­ery, so as to ar­rest on­go­ing loss of rev­enue,” Nu­gent noted.

“We stress that the re­place­ment of Mr Moy­ane is not a panacea, but only the first nec­es­sary mea­sure, with­out which there is no pos­si­bil­ity of rec­ti­fy­ing the dam­age that has been done to Sars.”

In a let­ter to Moy­ane, Ramaphosa said the in­terim re­port “paints a deeply con­cern­ing pic­ture of the cur­rent state of Sars and the reck­less mis­man­age­ment which char­ac­terised your ten­ure as com­mis­sioner of Sars”.

“Of fur­ther, and in many ways, greater con­cern is your re­fusal to mean­ing­fully par­tic­i­pate in the Sars com­mis­sion in or­der to as­sist with iden­ti­fy­ing the root causes of the sys­temic fail­ures at Sars and ways in which to ar­rest these,” Ramaphosa added.

Pres­i­den­tial spokesper­son Khusela Diko said that Kin­gon would re­main in his post un­til the pres­i­dent had ex­er­cised his con­sti­tu­tional du­ties and had acted in ac­cor­dance with the Sars Act.

Mean­while, Moy­ane con­tin­ues the fight to keep his job and has filed le­gal pa­pers with the Con­sti­tu­tional Court seek­ing to halt law­ful­ness of the Nu­gent com­mis­sion of in­quiry and the dis­ci­plinary against him.

Ramaphosa replied to Moy­ane via an af­fi­davit on Thurs­day his re­lief, fol­low­ing his fir­ing, had been ‘ren­dered moot’. The prospects of Moy­ane’s ap­pli­ca­tion to the court be­ing suc­cess­ful were ‘poor’, he added.

Kevin Al­lardyce, a labour lawyer, said Ramaphosa had the power, in terms of sec­tion 6 of the Sars Act, to ap­point the na­tional com­mis­sioner.

“While the Sars Act does not stip­u­late that the pres­i­dent has the power to re­move the na­tional com­mis­sioner, the power to dis­miss is a corol­lary of the power to ap­point – and, there­fore, the power to dis­miss has to be read into sec­tion 6 of the SARS Act.

“The ex­er­cise of this power is sub­ject to the con­sti­tu­tional prin­ci­ples of le­gal­ity and ra­tio­nal­ity.

“There­fore, Moy­ane could ap­ply to the High Court to set aside the de­ci­sion by Ramaphosa to dis­miss him on the ba­sis of it be­ing ‘an ir­ra­tional de­ci­sion’,” he added.

“In terms of sec­tion 9(1)(d), the com­mis­sioner is the CEO and also the ac­count­ing author­ity for Sars, and there­fore, he is an em­ployee who is en­ti­tled to pro­tec­tion in terms of the Labour Re­la­tions Act.

“There­fore, Moy­ane can the­o­ret­i­cally re­fer an un­fair dis­missal claim and seek com­pen­sa­tion.

“How­ever, given what has emerged at the Sars in­quiry and the rec­om­men­da­tions made by Nu­gent, Moy­ane has lit­tle or no prospects of get­ting any favourable rul­ing by any court,” Al­lardyce said.

Our ex­ec­u­tive lead­er­ship is bro­ken, un­sta­ble, wrecked by divi­sion and dis­trust – Mark Kin­gon

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