REMINDER: What the Nugent commission said about the SARS ‘rogue’ unit

Public Protector Busisiwe Mkhwebane on Friday released a report with adverse findings against Public Enterprises Minister Pravin Gordhan. One of Mkhwebane’s findings was that the so-called “rogue” unit established in 2007 when Gordhan was commissioner of the SA Revenue Service was unlawful.

In response to the report Gordhan’s lawyer Tebogo Malatji said on Friday it was “apparent that the public protector continues to get the facts wrong, get the law wrong and is demonstrably biased”. The minister has instructed his legal team to prepare an urgent review for the findings to contested in court. Details of the legal action to be taken will be announced next week.

Mkhwebane’s report is far from the first time the unit has been considered by a legal body. The judicial commission of inquiry into tax administration and governance at SARS, chaired by retired Judge Robert Nugent, in late 2018 found no evidence the unit was unlawful.

While allegations around the scope and nature of the unit – meant to tackle illicit trade – was not the primary focus of the inquiry, Nugent considered the unit in his final report, which he handed over to President Cyril Ramaphosa in December 2018.

“Why such a unit was considered to be unlawful is not clear to me,” the report read. 

Nugent said evidence presented before the inquiry about the “rogue unit” appeared to be an attempt to slander those who managed SARS before former commissioner Tom Moyane took over in late 2014. Nugent recommended that Moyane be sacked in an interim report and Ramaphosa fired him in November 2018. 

“The alleged ‘rogue unit’ is relevant to this commission only so far as it explains the consequences of the revelations in the Sunday Times,” Nugent said. The Sunday Times reference refers to a series of articles published in the newspaper starting in mid-October 2014.

“We have become acutely aware as the inquiry has progressed that the Commission has been sought to be drawn into an onslaught upon those who managed SARS before Mr Moyane arrived, founded upon allegations once peddled by the Sunday Times to a beguiled public for a year and more, about a ‘rogue’ unit that was alleged to have existed within SARS,” the report read.

He reiterated that the focus of the commission was not to be diverted from finding out why revenue collection had been compromised. “If there was wrongdoing on the part of those who managed SARS before the period with which we are concerned, then the proper course is for it to be reported to the authorities.

“The Sunday Times did great damage to SARS and the people of South Africa and the commission will not now pick up where it left off,” he said.

Nugent noted that Moyane closed down the unit in 2015 shortly after being appointed SARS commissioner based on the Sunday Times report. 

“I think the inference is inescapable that this [the closing of the unit] was the first step in ‘neutralising’ possible detractors,” he said.  

Two years after publishing its initial reports, the Sunday Times retracted its article and apologised. Nugent said that despite this, there had been “tragic consequences” for SARS, the country and the SARS employees implicated in the media reports.

Responding to a questions at a media briefing on Friday, Mkhwebane said that Nugent’s finding that the unit’s establishment was lawful was not relevant to her investigation.

In her report, she found that the establishment of the unit was “in violation of South African Intelligence prescripts”. She said that SARS established the unit “without the involvement of the National Intelligence Agency, now known as the State Security Agency”. 

The revenue collection agency has not yet commented on the findings. A spokesperson earlier told Fin24 the tax agency had not yet received the report.