Gordhan leads the charge against Moyane
• Lawyers for suspended SARS commissioner question why former finance minister is Presidency’s key witness
Public Enterprises Minister Pravin Gordhan has emerged as the Presidency’s most pivotal witness against suspended South African Revenue Service commissioner Tom Moyane – and Moyane’s lawyers are not happy about it. After a series of missed deadlines, the Presidency on Thursday filed a 69-page affidavit in which Gordhan outlines the four misconduct charges against Moyane.
Public Enterprises Minister Pravin Gordhan has emerged as the Presidency’s pivotal witness against suspended tax office commissioner Tom Moyane — and Moyane’s lawyers are not happy about it.
After a series of missed deadlines, the Presidency on Thursday filed a 69-page affidavit by Gordhan, in which he sought to outline the four misconduct charges against Moyane. He emphasised that, as the former finance minister, he had “personal knowledge of the facts relevant to this matter up until 30 March 2017”.
“Furthermore, the documents and correspondence relevant to this matter were within my custody and control during that time,” he stated.
But Moyane’s lawyers are not convinced and have queried why Gordhan, who they say has had “a well-documented history of conflict” with Moyane, is making the Presidency’s case for his removal.
“The crisp issue that needs to be determined by this misconduct inquiry is whether President Ramaphosa had a basis to lose confidence in Mr Moyane. So it’s inexplicable to us that Minister Gordhan is the person who deposed to an affidavit on behalf of the Presidency,” Moyane’s attorney Eric Mabuza said.
Gordhan and Moyane had a difficult relationship while Gordhan was serving as finance minister, one that saw an emotional Moyane telling a South African Revenue Service (SARS) news conference that the minister “refused to shake my hand”.
Gordhan, in turn, had reportedly warned Moyane that approving his own performance bonus was “unethical, immoral and illegal”.
Moyane has made it clear he wants Ramaphosa to testify against him and has rejected any suggestion that this inquiry can be determined solely on documentary evidence. He has also strongly suggested that he will go to court if the inquiry is not referred to oral evidence by its chair, advocate Azar Bham.
In the affidavit, Gordhan details the four misconduct charges against Moyane: “gross mishandling” of the corruption allegations against his former second-in-command Jonas Makwakwa, which included conducting a “sham investigation” into those allegations, his alleged dishonesty to Parliament, “unauthorised bonus payments” and interference in the SARS rogue unit investigation.
That investigation saw Gordhan himself charged by the National Prosecuting Authority over the granting of early retirement to former SARS commissioner Ivan Pillay.
That case was withdrawn after the state conceded it had been unaware of crucial evidence that exonerated Gordhan. The docket that led to those charges being instituted was opened by Moyane.
Allegations against Moyane, as detailed by Gordhan, include:
● That he “grossly mishandled” the Financial Intelligence Centre report, given to him in May 2016, about “suspicious transactions” involving Makwakwa and his girlfriend, Kelly-Ann Elskie. The Financial Intelligence Centre referred the report to SARS to determine whether there was evidence that the two were involved in tax evasion, moneylaundering, corruption and/or violations of the Public Finance Management Act.
● That this alleged gross mishandling involved Moyane failing to take “any rational or effective action” in response to the report and failing to report its “serious” allegations to the minister of finance or the Hawks.
● That Moyane disclosed the contents of the Financial Intelligence Centre report to Makwakwa and Elskie, and allowed them to keep rendering services to SARS. Moyane also stands accused of asking the Financial Intelligence Centre to provide information to the pair’s lawyers about the allegations against them when he “ought to have known” they were not entitled to that information.
● That only after the report was published by the Sunday Times in September 2016 Moyane approved the terms of reference that were “wholly inadequate to ensure an effective investigation into the report”.
● That he failed to ensure that SARS conduct a tax evasion investigation into Makwakwa and Elskie, and failed to ensure that investigators PricewaterhouseCoopers were given access to the phones and computers issued to the pair, as well as to their accounting records and bank accounts.
● That in November 2017 he lifted Makwakwa’s suspension and allowed him to return to work “notwithstanding the pending investigations and inconclusive investigations in respect of many of the issues raised in the report”.
● That Moyane’s “gross mishandling” of the report “brought SARS into disrepute and caused serious damage to the credibility of the institution”.
● That between July 2016 and November 2017 Moyane took a decision to pay “performance bonuses” to managerial employees of SARS without the approval of the finance minister. This caused the auditor-general to find SARS guilty of “internal control deficiency and irregular expenditure, causing reputational harm to the institution”.
● That Moyane misled Parliament twice: once in relation to the investigation into Makwakwa and, in March 2018, by claiming that he had no involvement in SARS’s procurement processes “whilst knowing this not to be true”.
● That on May 7 2015 he instructed SARS official Helgard Lombard not to co-operate with the KPMG investigation into the SARS high-risk investigation unit (the so-called “rogue unit”) by “instructing Mr Lombard to feign illness on the day he was to be questioned”.
Moyane maintains he is innocent of these charges and will plead not guilty.