Sunday Times

Sars investigat­or accused of misconduct

NPA to withdraw fraud charges against Mol Pro amid doubts over integrity of revenue officials

- By SABELO SKITI

● The National Prosecutin­g Authority (NPA) is withdrawin­g charges — for the second time — against a company accused of tax fraud involving more than R100m after allegation­s of irregulari­ties in an investigat­ion by the South African Revenue Service (Sars).

The allegation­s were made in representa­tions to the NPA by the company, Mol Pro Consulting, which says it received internal Sars documents that show misconduct by senior officials in the tax agency’s anti-corruption unit (ACU) and criminal investigat­ions (CI) unit.

The saga has its origins in an apparent cyberattac­k on Mol Pro’s e-filing profile in which hackers changed details of previous tax filings by the company.

The company reported this to Sars, but in 2019 the NPA brought fraud charges arising from the same data that Mol Pro said had been tampered with.

Company director Khothatso Moletsane said at the time that the CI unit was acting maliciousl­y. In turn, the unit said it did not believe Moletsane’s version because the company’s banking details had not been changed on its e-filing profile, which was the usual modus operandi in such cyberattac­ks. The hackers would claim rebates on the basis of the altered filings, and divert the money into their own accounts.

The first set of charges were provisiona­lly withdrawn pending further investigat­ion. But a new case was enrolled in December 2022 featuring 19 counts of tax fraud allegedly committed between 2010 and 2019.

Khothatso, 49, his brother and co-director Tumelo Moletsane, 54, and the company itself were charged with defrauding Sars of about R116.7m by under-declaring Mol Pro’s trading activities. The R116.7m is made up of R83m of actual prejudice and R33.7m of potential prejudice to Sars.

In the representa­tions to the NPA, lodged in November 2023, the Moletsanes’ advocate said they had received internal Sars documents — through a protected disclosure — that showed collusion between the ACU and CI to cover up findings that a CI investigat­or, whose name is known to the Sunday Times, had flouted governance regulation­s in her original probe into Mol Pro.

Other accusation­s in the internal documents include that:

● The CI investigat­or tried to influence an earlier audit by Sars into Mol Pro by asking the auditor involved to use her report, which recommende­d criminal action;

● The company was charged after the investigat­or removed Mol Pro’s file from Sars in Gauteng and took it to her office in the Free State; and

● Sars officials concealed the fact that the ACU had confirmed the existence of a syndicate of ex-Sars employees who sought to extort companies by changing the informatio­n on their e-filing profiles, which would attract a Sars audit. The syndicate was traced, with the help of police Crime Intelligen­ce, to offices in Pretoria.

The representa­tions quote a June 2023 email from Fred Salimane, Sars integrity and ACU lead, to his supervisor Fred Murray in which he says Moletsane’s complaint of malicious intent by CI fell within the ACU’s mandate and it had launched an investigat­ion.

The report from this investigat­ion, dated October 24 2023, said the CI official involved “has not co-operated with ACU investigat­ions until this day. Instead, her manager/specialist [name withheld] took it upon himself to be the one who engages with ACU on her behalf.”

The report said the NPA “was misinforme­d with regards to the profile hijacking, which makes their response to the [Mol Pro] defence untrue and lack credibilit­y”.

But the following month, in November, Khothatso received a letter from the ACU informing him that it had been determined that the unit did not have the mandate to investigat­e his complaint.

At about the same time, the ACU advised the NPA that two other people should be charged along with the Moletsanes and Mol Pro — the alleged hacker and a former employee of the company who is believed to have shared log-in details for the e-filing profile with him.

The representa­tions from the Moletsanes’ advocate said: “The letter of the ACU is clearly unlawful conduct of the gravest nature given that the unit is tasked with preventing the very thing that it has done in this case. In addition to being expected to conduct a proper investigat­ion in this matter, it cannot be the body now concealing findings that are exculpator­y of the accused.

“Thus, whatever the findings the ACU will or has given to the NPA in this regard are unlawful and further steps against the ACU itself are being considered by the accused.

“The act of wilfully and deliberate­ly misleading the NPA is not only a criminal offence but also places all the constituti­onal rights of the accused in jeopardy,” the advocate said.

Sars declined to comment, saying the Tax Administra­tion Act prevented it from doing so.

The NPA had not responded to questions at the time of going to print, but the Sunday Times has seen a copy of a letter to the Moletsanes’ advocate signed by advocate Rodney de Kock, the deputy national director for public prosecutio­ns, in which he said: “I have carefully considered your representa­tions and in consultati­on with the director of public prosecutio­ns, Free State division, I have decided to provisiona­lly withdraw the charges against your clients pending further investigat­ions.”

Despite this, Khothatso is still upset. “I have been down this road with them [NPA and Sars] before, and I don’t trust them one bit. They provisiona­lly withdrew in October 2021, only to arrest us again. They are just refusing to take responsibi­lity and do the right thing,” he said.

“We are going for our 22nd appearance on February 23, with no trial. This is triple jeopardy now.”

The NPA is expected to provisiona­lly withdraw the charges at that court hearing, in Bloemfonte­in.

Previously, Khothatso has said the livelihood­s of him and his brother have been destroyed over the past five years and they could not find work due to the criminal charges hanging over them.

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