Public Protector Busisiwe Mkhwebane has subpoenaed former South African Revenue Service (Sars) commissioner Oupa Magashula and former deputy commissioner Ivan Pillay over alleged irregularities with Pillay's retirement, her spokesperson said on Wednesday. 

"Yes, the Public Protector subpoenaed Mr Magashula and Mr Pillay over alleged irregularities regarding the latter's retirement, pension payout and reemployment at SARS," said Oupa Segalwe.

"This was in the second week of March. They are due to appear before her on 25 March 2019," Segalwe said by text. 

Asked to confirm if he had been subpoenaed and for more details, Pillay replied by WhatsApp: "Hi, no comment at this stage."

Magashula had not replied to a question from News24 but his response will be added if he chooses to do so.  

Magashula left Sars in 2009 and Pillay in 2015. The revenue collection agency has come under the spotlight for mass resignations and changes to job descriptions following former commissioner Tom Moyane's controversial plans for sweeping changes at the receiver.

It has since emerged that Pillay had been allowed to take early retirement in 2010 on condition the pension fund was topped up to make up for the shortfall of an early retirement. Pillay returned to Sars in the same year on a contract. 

In August 2016, Pravin Gordhan was being pursued by the Hawks in a criminal investigation relating to Sars' alleged payment of the top-up on behalf of Pillay. He said in response to the allegations that Magashula had written to him asking for approval of Pillay's early retirement so that Pillay could fund his children's education through his pension.

Anonymous request

Gordhan said he had established that Magashula had checked with the Department of Public Service and Administration that Pillay's reemployment was above board. He then approved Magashula's proposal on Pillay's retirement and felt he had done nothing wrong.

Nevertheless, the National Prosecuting Authority pursued fraud charges against the three, but these were dropped by former National Director of Public Prosecutions Shaun Abrahams.

The subpoenas to Pillay and Magashula follow an anonymous request to the Public Protector to investigate the retirement issue. 

In an explanatory statement released in November last year, Mkhwebane stated that she had written four times to former finance minister and now Public Enterprises Minister Gordhan to respond to allegations that he irregularly approved Pillay's retirement, bought off his pension balance and later allowed him to be reemployed by Sars in 2010.

On October 2 last year Mkhwebane had subpoenaed Gordhan to appear before her on November 14 after he allegedly failed to respond.

"The minister, through his attorney, responded to the subpoena on 22 October 2018, indicating that he would present himself to the Public Protector as per the subpoena," stated Mkhwebane last year amid questions raised over the subpoena.

Failure to comply might lead to fine, prison time

Mkhwebane said she was within her legal rights to conduct a preliminary investigation for the purpose of determining the merits of complaints, allegations or information, among other things. 

She said the investigation into the alleged conduct of Gordhan was at a preliminary stage and accordingly, he was getting a chance to respond to the allegations or the complaint. 

She added that members of the public and political parties regularly ask her to investigate purely on the basis of news reports. Sometimes it is without evidence, but it does not stop her from investigating. 

The law also empowers her to ask anybody to give evidence to her or submit an affidavit, and she may also examine the person. Failure to comply with a direction from her office could lead to a conviction and liability for a fine of up to R40 000 or up to a year in prison. 

She said attorneys and advocates can be present during appearances before her, but cannot speak on behalf of the person appearing. 

"Not all improper conduct or maladministration [constitutes] a criminal conduct or offence," she added.