Moyane urged to respond to claims
Suspended Sars chief intends to take his complaint of unfairness to the Constitutional Court
President Cyril Ramaphosa has again urged SA Revenue Service boss Tom Moyane to respond to the gross misconduct claims against him, as the former commissioner’s lawyers confirm he will take his battle with the president to the Constitutional Court.
President Cyril Ramaphosa has again urged SA Revenue Service (Sars) boss Tom Moyane to respond to the gross misconduct claims against him, as the former commissioner’s lawyers confirm he will take his battle with the president to the Constitutional Court.
Moyane’s lawyers have informed advocate Azhar Bham, who is chairing the misconduct inquiry against him, of his intention to turn to the court to contest the fairness of the process.
Ramaphosa’s spokesperson, Khusela Diko, said that “Mr Moyane is within his rights to go to court. Undoubtedly this is a matter that would be vigorously defended.” She said the president “has and continues to urge Moyane to respond to the substantive allegations” against him.
Ramaphosa suspended Moyane in March. He was later charged over his alleged mishandling of a Financial Intelligence Centre report on his former second-in-command, Jonas Makwakwa; unauthorised bonus payments to his staff; allegedly misleading parliament over the Makwakwa investigation; and instructing Sars employee Helgard Lombard to feign illness and not co-operate with the KPMG investigation into the Sars “rogue unit”.
In August, Bham dismissed Moyane’s complaints about the inquiry, which Moyane argued should require Ramaphosa to testify about why he lost confidence in him. Moyane is also unhappy that former finance minister Pravin Gordhan, his long-time adversary, was the person who detailed the allegations against him. Moyane argued that Gordhan is not legally empowered to make the case against him and rejected the minister’s affidavit as “vague and embarrassing”.
Bham was unconvinced by Moyane’s complaint about the alleged exclusion of oral evidence, saying only the president could change the disciplinary hearing’s terms of reference. He said he has discretion to refer disputed evidence to oral testimony and cross-examination. In a letter sent to Bham last week, Moyane’s attorney, Eric Mabuza, made it clear that he does not accept this ruling.
“Our understanding of your position is that, much like [Sars commission of inquiry head judge Robert] Nugent, you consider your hands to be so tied … that you are incapable to determine anything in respect of the inquiry, including the fairness or otherwise of its proposed procedures pertaining, for instance, to the perceived denial of the ordinary right to cross-examination which is contained in the applicable disciplinary code.
“Our client finds himself in the invidious position where after raising his procedural objections with the president a few months ago he was advised by the president to raise them with you. When he did exactly that, you ruled that he should raise them with the president.”
In response, Diko accused Moyane’s lawyers of “choosing to misunderstand” the president’s position.
“The president said, since he expected they would raise their concerns with advocate Bham [which they did], he would await to hear the outcome. Advocate Bham decided on the matter.”
Moyane said also he is being unfairly subjected to two inquiries, as the Nugent inquiry largely focuses on allegations against him, and one of the inquiries should be stayed.
Diko was adamant, however, that “at no point did the president indicate he would stay any of the matters”.
Moyane will now raise his objections before the Constitutional Court. As a result, Mabuza told Bham that Moyane “will not be submitting any answering affidavit in your disciplinary inquiry”, as he continues to dispute that he has any legal obligation to file such an affidavit.