Judge Robert Nugent on Tuesday criticised Bain & Company global consultancy firm for failing to comply readily with the commission of inquiry into the South African Revenue Service (Sars) and said it appeared that its stated commitment to repaying R164-million in fees was discretionary.

Nugent put it to Bain's vice president Stuart Min that the company's willingness to refund the money it received for helping SARS redesign its operating model was "conditional".

Min replied that the money had been set aside, and that eventual repayment was certain.

"A payment away from Bain & Company is not optional, that will take place," he said.

On questioning from Nugent, he said that the refund would take place once the commission had issued its findings and the company had ascertained to whom it should release the money.

"In other words, Bain will decide whether conditions are favourable," the judge replied.

Min, who is based in Boston in the US, answered that "in my opinion it will be paid, we will just not know to where" until certain processes had been completed.

He was testifying after the commission was informed that Bain's local managing partner Vittorio Massone had returned to Italy for urgent medical treatment.

Nugent expressed his dissatisfaction with the turn of events and tongue-lashed the company for failing to be upfront of the extent of meetings between Massone and suspended Sars commissioner Tom Moyane which culminated in the company securing its contract with the revenue service.

Min said the company did not think that these had been relevant to the procurement process, and that he had not personally been aware of the meetings.

Massone and Moyane met eight times, and their first encounters reportedly predated Moyane's appointment as Sars head.

Nugent said he was frustrated by the lack of disclosure in an earlier written submission by Massone because it only simply mentioned that they met and he offered Moyane high-level executive coaching.

"What we get is two lines," he told Min.

Bain's restructuring model was adopted by the revenue service in 2014 and resulted in certain collection units being shut down. It also saw skilled staff moved around and prompted the departure of others.

The company issued a statement earlier this month in which it said it believed it may have been used for a political or personal agenda.

Moyane was suspended in March.

He ordered the implementation of Bain's restructuring model only four months into the job.