Court urged to halt Moyane’s challenge

Judge Robert Nugent says Sars commissioner’s application is not in interest of justice or SA

Judge Robert Nugent has urged the highest court in the land to block suspended SA Revenue Service (SARS) commissioner Tom Moyane’s bid to challenge the fairness of his tax administration inquiry in the Constitutional Court, and says it is not “in the interests of justice” for SA’s highest court to hear the case.

In a 700-page application to the court, Moyane seeks to challenge the legality of both the Nugent commission into governance and tax administration, and the Bham inquiry into his fitness to hold office.

President Cyril Ramaphosa, who appointed Nugent, and public enterprises minister Pravin Gordhan are opposing the application, but both have yet to file affidavits detailing the basis of their opposition.

Nugent’s response to Moyane’s application comes after the judge wrote to the commissioner’s lawyers and informed them that he would recommend his dismissal to President Ramaphosa in late September. The Constitutional Court’s decision on Moyane will invariably affect Ramaphosa’s ability to act on Nugent’s recommendation.

While advocate Azhar Bham, who is chairing the inquiry into Moyane’s fitness to hold office, has indicated that he will abide by the decision made by the Constitutional Court, Nugent is opposing Moyane’s application, which he says makes “no cause of action” against him.

In a four-page notice of opposition filed at the court last week, Nugent further states that Moyane’s case “does not fall within this court’s exclusive jurisdiction” and says there is “no basis for granting direct access to the Constitutional Court” to Moyane.

Moyane has argued he was the most successful SARS commissioner in democratic history.

He also said that Nugent wrote to his lawyers in September and told them that he intended to “recommend to the president, by the end of September 2018, that ‘in the interest of SARS and the country, [Moyane] should immediately be removed from office and be replaced by another person...’.”

Moyane maintains this is grossly unfair, and argues that the Nugent inquiry has been a “witch hunt” against him.

During its most recent hearings, the Nugent inquiry heard how changes introduced by Moyane — after he was

appointed commissioner — had weakened SARS to such an extent that the resulting revenue shortfalls had contributed to South Africans being hit earlier in 2018 by the first VAT increase in a quarter of a century.

Moyane said any shortfalls would have been due to a sluggish economy and that during his time, SA had “the highest tax to GDP ratio in the world”. He further argues that Nugent is “biased” against him. While not yet specifically addressing Moyane’s “bias” accusations, Nugent maintains that the conduct that Moyane has complained about “is not final in effect and therefore not amenable to review”. He says there is also “no basis” to grant a punitive costs order against him over it [as argued for by Moyane’s lawyers].

In his application to the court, Moyane has also accused Ramaphosa of “violating his oath of office” in his treatment of him.

According to Moyane, Ramaphosa unlawfully “abdicated” his powers to make the case for his removal from office to Gordhan, “who is not legally authorised to act as he did in respect of the disciplinary inquiry and who is in any event further disqualified due to his conflict of interests and proximity to the issues as a relatively recent commissioner of SARS and his legendary hostile and disrespectful attitude and conduct towards me”.

Moyane has accused Gordhan of targeting him out of “envy and downright jealousy”.

Moyane is facing misconduct charges over his handling of a Financial Intelligence Centre report about “suspicious transactions” involving his former deputy Jonas Makwakwa, the awarding of allegedly unauthorised bonuses to SARS staff, accusations that he lied to Parliament and allegations that he instructed a SARS employee to feign illness to avoid giving evidence to KPMG “rogue unit” investigators. Moyane has denied these allegations.