NATASHA MARRIAN: Bain exits, but its legal challenge to ban is a pain

“Good riddance” is the natural reaction to Bain & Co exiting SA, given its role in gutting the SA Revenue Service (Sars).

However, the company’s actions are still holding back government efforts to hold private actors to account for their role in state capture under former president Jacob Zuma. 

Bain & Co was at the centre of the capture of Sars by Zuma and his ally Tom Moyane. The company had presented a restructuring plan for the tax agency to Moyane before he was appointed to the post, before a tender for the restructuring was advertised, and before ever setting foot in the agency’s Pretoria headquarters. 

Instead, it relied on former Sars chief operations officer Jonas Makwakwa to plan the overhaul, and aided in getting rid of key, long-standing Sars officials and neutralising its crack investigating capacity, built over decades, which had become a thorn in the side of dodgy politicians and their families. 

This week President Cyril Ramaphosa released a progress report on the implementation of the recommendations from the state capture inquiry chaired by then deputy chief justice Raymond Zondo. In it the presidency noted that action against private companies implicated in the Zondo report faced “implementation challenges”.

“While the National Treasury imposed a 10-year ban on Bain & Co doing business with the SA state (from September 5 2022 to September 4 2032), this process has been subject to litigation. Bain has mounted a legal challenge to the constitutionality of the disbarment process, filing a second supplementary affidavit on March 3 2025,” the report says. 

“The National Treasury subsequently filed its answering affidavit on April 14 2025. Bain’s replying affidavit was due on May 2 2025 but the company has requested an extension.” Crucially, it added: “The disbarment of other implicated companies has been delayed pending the outcome of the Bain case.”

This means state action against KPMG remain on hold until the case brought by Bain is finalised. Bain managed to get a three-year ban against it over the Sars furore reversed in the UK after successfully challenging it in court. 

KPMG would be a prime candidate for action similar to that taken against Bain. Its role was considerably worse — it propagated the false “rogue unit” narrative in a report commissioned by Moyane. However, its findings were far from independent or factual — they were dictated to the firm by Moyane himself through a memo from his attorney.

The company admitted before the inquiry that the findings and recommendations of the report into the rogue unit were simply cut and pasted from Moyane’s memo. More than any other, the KPMG report empowered Moyane to bring in Bain and start destroying Sars’ institutional capacity, which culminated in a R100bn hole in revenue collection during that period. 

There is little clarity on the repercussions for KPMG — it was fined R200,000 by the Independent Regulatory Board for Auditors late last year (this was not widely reported, but appeared in the authority’s magazine). It was unclear from the entry in the magazine what the fine was for, and whether it was linked to Sars. For many former Sars employees who were affected by the KPMG report, the firm has still not been adequately held to account for its role in perpetuating the false narrative of a rogue unit, despite paying back the fees it “earned”.

In the meantime, organised businesses in SA are for the most part comfortable working alongside Bain and KPMG — both form part of the B20, which brings together business leaders from across G20 states ahead of the summit to be hosted by SA in November. This elicited a response from Ramaphosa, who raised concern about the inclusion of firms linked to state capture, but it didn’t carry much weight given that Ramaphosa has included state capture implicated individuals in his executive. 

Still, if Bain’s “exit” from SA is more than a public relations exercise it should withdraw its case against the ban imposed by the National Treasury. All private companies that were complicit in state capture should be held to account.

• Marrian is Business Day editor at large.