In a decision that a Daily Maverick report says affirms the Nugent Commission into Tax Administration and Governance at SARS as the authority on the revenue service – as well as longstanding allegations of a ‘rogue unit’ in its midst – Judge Pieter Meyer, of the Gauteng High Court (Johannesburg), ruled against local businessman and tax dodger Martin Wingate-Pearse in a more than decade-old tax squabble. Meyer relied entirely on the Nugent Commission, saying it ‘made findings in its final report that support SARS’ stance that Wingate-Pearse’s allegations about the existence of a rogue unit within the ranks of SARS are without a sound factual basis’. The Nugent Commission conducted a four-month investigation in 2018 and published its findings in December. Meyer repeated that the commission’s wide-ranging findings, in a section of its report labelled ‘The So-called ‘Rogue Unit’ ’, included that:

1. The establishment of a SARS unit named the High Risk Investigation Unit (HRIU) was lawful.

2. The National Strategic Intelligence Act had no bearing on SARS.

3. SARS, and therefore the historical HRIU unit members, have far-reaching and covert investigative powers.

4. Allegations of a ‘rogue unit’ within SARS are without a sound factual basis.

The DM report points out that Nugent did not investigate the conduct of the unit. Charges against one former member of the unit, Andries Janse van Rensburg, as well as two former managers Johann van Loggerenberg and Ivan Pillay, are being reviewed by the NDPP Shamila Batohi in the contentious ‘Sunday Evenings’ case. It adds that since Meyer’s ruling is reportable, it will be taken into consideration by courts considering any similar matter. This includes review proceedings against Public Protector Busisiwe Mkhwebane which challenges the rationality of her findings against Minister of Public Enterprises Pravin Gordhan.

Wingate-Pearse asked the court for a declaratory order finding that the establishment by SARS of the investigating unit was without statutory authority, unlawful, inconsistent with the Constitution and invalid, and that the unit abused its power and resources by illegally spying on taxpayers, that he was a victim of this covert intelligence unit and that it infringed on his constitutionally protected rights. Wingate-Pearse struggled to provide any evidence. According to the DM, Meyer said his allegations cannot be true, because the HRIU unit was only established in 2007 – long after SARS investigated and raised additional tax assessments. Some of Wingate-Pearse’s allegations are also ‘absurdly wide’, ‘too generalised’ and ‘vague’. The judge further found Wingate-Pearse ‘strongly relies’ on an affidavit by triple spy and attorney Belinda Walter to support his allegations that SARS ‘employed illegal intelligence-gathering measures’ against him. Walter’s affidavit is, however, high on conspiracy and low on proof. Meyer dismissed the case, as well as an interlocutory application relating to SARS’s additional estimated tax assessments – with costs, while berating Wingate-Pearse for giving SARS the runaround for over a decade. Wingate-Pearse’s allegations contain some of the same allegations Mkhwebane considered in a complaint lodged at her office by EFF deputy president Floyd Shivambu and an anonymous complainant. These complaints, however, inject Pravin Gordhan into the rogue unit question, accusing him of being instrumental in the illegal establishment of the HRIU unit, as well as the recruitment of its members. Meyer’s judgment and the findings of Mkhwebane are diametrically opposed. Meyer ratified the Nugent report, establishing the commission as the leading authority on SARS and the HRIU unit’s existence. Mkhwebane, in contradiction, found the establishment of the HRIU unit was unlawful, that the unit contravened national intelligence provisions, that the unit went ‘rogue’ and that Gordhan was involved in the thick of things. Meyer’s judgment does not make any mention of Mkhwebane’s findings on the SARS investigative unit.