Ferial Haffajee: Inside Mkhwebane's latest investigation into SARS head Kieswetter

Public Protector Busisiwe Mkhwebane is bringing a third economic institution, this time SARS, closer into target range. She is currently investigating whether or not SARS commissioner Edward Kieswetter has the requisite qualifications for the role he was appointed to in March and for which he took office in May, Fin24 has learnt. 

Mkhwebane’s investigations have targeted President Cyril Ramaphosa and Public Enterprises minister Pravin Gordhan, both of whom run institutions vital to the economy. SARS is also key to reform as the economy can head further into a tailspin if revenue collection is not stabilised. 

Acting on an anonymous complaint, Mkhwebane’s investigators are currently scrutinising Kieswetter’s appointment, both in terms of his qualifications and the process of his appointment by a panel appointed by President Cyril Ramaphosa. Fin24 has been told that investigators are looking at the job advert for the role and comparing it with Kieswetter’s qualifications.

The advert called for: "A relevant degree (Finance/law/economics/tax/accounting) as recognised by SAQA (the national qualifications authority), a postgraduate qualification will be an added advantage, a minimum of 10 years relevant Senior Management Experience within the Financial Sector."

A Treasury statement on his appointment said: "Mr. Kieswetter emerged as the strongest candidate, based on his past experience as Deputy Commissioner for SARS between 2004 and 2009, and his subsequent track record of transformative leadership and his experience of turning around a large institution."

Kieswetter is a previous CEO of Alexander Forbes. But Fin24 understands that the Public Protector investigation is considering whether Kieswetter’s many degrees are "relevant" as described in the advertisement. Much decorated, Kieswetter is a cognitive development specialist with a Masters in the field; he has an MBA (Henley); and M.Com (cum laude) from North West University. In addition, he read for a B.Ed (Honours – Mathematics and Science) from UWC, and he has been a Harvard fellow. 

Mkhwebane’s investigators are probing whether all these degrees amount to a "relevant degree in finance/law/economics/tax/accounting" as required in the job spec. Kieswetter was appointed by Ramaphosa from a star-studded shortlist that included Nathaniel Mabetwa, Sunita Manik, Mark Kingon, Gene Ravele and Nazrien Kader. The appointment was not public. The anonymous complainant to Mkhwebane has said that the process should have been transparent.

"The issue of transparency is also important in the conduct of these interviews as SARS is an important institution and shrouding this important process in secrecy does not help but supports the contention that this process is compromised…

"Moreso, that precedence (sic) was set when the head of the NPA and the SABC Board were appointed. Transparency is also a factor when Judges are interviewed for vacant posts. WHY IS THIS TRANSPARENCY PRINCIPLE NOT APPLIED IN THE CASE OF THE SARS COMMISSIONER? (sic) Which is also a position of equal importance."

The panel to interview and recommend who should become SARS commissioner was established by terms set by Judge Robert Nugent in his final report of the commission of inquiry into tax administration which he chaired. It was chaired by former Finance minister Trevor Manuel and included six prominent South Africans on it. They were: Angela Bester, Judge Dennis Davis, Sindi Mabaso-Koyana, Ismail Momoniat, Thandi Orleyn and Fezekile Tshiqi. Manuel recused himself from Kieswetter’s interview because they are friends.

Separation of powers In Ramaphosa’s interdict application on Thursday to postpone Mkhwebane’s remedial action required of him in a separate case, the head of state warns that the Public Protector may be impinging on the separation of powers and on presidential prerogative. This critique may prove relevant in this case too, as the power to appoint the SARS Commissioner is vested in the President acting on the advice of the Finance Minister.

There is no law that requires a transparent appointment process, although Nugent built transparency into the process when he recommended that the recommendations of the appointing panel be made public.

The investigation Mkhwebane is undertaking into SARS resonates with positions taken by the EFF. In March, the party said that it would do all in its power to overturn Kieswetter’s appointment and it also complained that the "secret interview process goes against the spirit of transparency and openness". The Black Management Forum also objected to Kieswetter’s appointment, calling it "rushed and guarded".

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