Sus­pended SARS boss Tom Moy­ane heads for a bruis­ing court duel with Pres­i­dent Cyril Ramaphosa

Sunday Times - - Front Page - By KARYN MAUGHAN

The charge sheet fur­ther states that the Pres­i­dency ‘re­serves the right to amend and/or sup­ple­ment these charges at any time’

● Sus­pended SARS com­mis­sioner Tom Moy­ane, who is re­fus­ing to step down, wants to drag Pres­i­dent Cyril Ramaphosa to court fol­low­ing a heated shout­ing match over mil­lions of rands that SARS paid out to the Gupta fam­ily.

Moy­ane’s lawyer is pre­par­ing a ma­jor le­gal at­tack, chal­leng­ing the dis­ci­plinary charges brought against him by Ramaphosa this week on the grounds that there was al­ready a pre­de­ter­mined out­come to fire him from his R3.6-mil­lion-a-year job.

This claim, ac­cord­ing to his lawyer Eric Mabuza, fol­lows a one-on-one meet­ing con­vened at Ramaphosa’s “pri­vate home” on March 18, when the pres­i­dent “shouted” at Moy­ane, ques­tion­ing him at length about a R70-mil­lion VAT re­fund paid by SARS to Gupta com­pany Oak­bay.

Also at is­sue was Moy­ane’s han­dling of se­ri­ous crim­i­nal al­le­ga­tions against his for­mer deputy, Jonas Mak­wakwa.

Lost con­fi­dence

Dur­ing the meet­ing, Ramaphosa asked how ev­ery­thing at SARS could be fine “when his ‘sec­ond-in-com­mand’ was seen stuff­ing money into an ATM ma­chine”.

Mak­wakwa had re­signed days be­fore, fol­low­ing re­ports that New In­te­grated Credit So­lu­tions, which has a debt-col­lec­tion deal with SARS, paid him R600 000.

Ac­cord­ing to Mabuza, when Moy­ane “cor­rected” Ramaphosa and ex­plained that he was the only one in charge of SARS, and that there was no sec­ond-in-com­mand, the pres­i­dent dis­missed this as be­side the point.

Ac­cord­ing to Moy­ane’s lawyers, the pres­i­dent said only one word in re­sponse to the com­mis­sioner’s in­sis­tence that he was in charge at SARS: “What­ever.”

“There­after the pres­i­dent asked Mr Moy­ane about the Gupta VAT pay­ment story. Mr Moy­ane ex­plained that he had noth­ing to do with the is­sue. It was at that stage that the pres­i­dent told Mr Moy­ane that he had lost con­fi­dence in him and asked him to re­sign.”

The con­ver­sa­tion came days af­ter re­ports that Moy­ane had pres­sured staff to make al­legedly il­le­gal VAT pay­ments to the Gup­tas.

“It is cu­ri­ous that the pres­i­dent could have ar­rived at a ra­tio­nal de­ci­sion about the com­pe­tence or suit­abil­ity of Mr Moy­ane in a meet­ing which only lasted for 30 min­utes. If any­thing, it sug­gests that the pres­i­dent had al­ready made up his mind,” said Mabuza.

“Sec­ond, it is also strange that the charge sheet [served on Moy­ane this week] does not con­tain any­thing about the Gupta VAT is­sue, the very is­sue which al­legedly caused the pres­i­dent to lose con­fi­dence in Mr Moy­ane.”

Mabuza added: “It is im­por­tant to point out that Mr Moy­ane has re­spected the process by keep­ing quiet for all this time and he is very ag­grieved that the Pres­i­dency ear­lier this week leaked that he was go­ing to re­ceive charges by the end of the week (which could only have been known to the Pres­i­dency) and then . . . is­sued a state­ment con­firm­ing that he has re­ceived charges and even giv­ing the iden­tity of the ap­pointed chair­per­son.”

His client “can no longer be ex­pected to re­main silent when his pri­vacy rights are be­ing con­stantly vi­o­lated by the Pres­i­dency”.

Gross mis­han­dling

Pres­i­dency spokes­woman Khusela Diko said Ramaphosa was re­spon­si­ble for the man­age­ment of all “ca­reer in­ci­dents” of the com­mis­sioner.

“Mr Moy­ane has not been dis­missed from SARS; he has been sus­pended and a dis­ci­plinary in­quiry in­sti­tuted to get to the bot­tom of all the al­le­ga­tions and ac­cu­sa­tions lev­elled against him. Any is­sues he has with the process will also be heard and set­tled dur­ing the hear­ing,” she said.

“The pres­i­dent has con­sis­tently re­spected the con­fi­den­tial­ity of the dis­cus­sions and cor­re­spon­dence with Mr Moy­ane and will con­tinue to do so. That is why the Pres­i­dency will not com­ment fur­ther on the ac­count given by Mr Moy­ane’s at­tor­ney.”

Ramaphosa’s of­fice said on Fri­day that Moy­ane would face a dis­ci­plinary in­quiry, chaired by for­mer Con­sti­tu­tional Court Jus­tice Kate O’Re­gan. Ad­vo­cate Dali Mpofu SC will act for Moy­ane.

The Sun­day Times has seen the nine-page charge sheet against Moy­ane, dated May 2, in which he is ac­cused of “hav­ing com­mit­ted mis­con­duct in vi­o­la­tion of your du­ties and re­spon­si­bil­i­ties as Com­mis­sioner of SARS” in terms of the SARS Act, Pub­lic Fi­nance Man­age­ment Act, SARS Code of Con­duct and the con­sti­tu­tion. The al­le­ga­tions in­clude:

That he “grossly mis­han­dled” the Fi­nan­cial In­tel­li­gence Cen­tre re­port, given to him in May 2016, about “sus­pi­cious trans­ac­tions” in­volv­ing Mak­wakwa, the SARS chief of­fi­cer for busi­ness and in­di­vid­ual tax, and his girl­friend, Kelly-Ann El­skie. The FIC re­ferred the re­port to SARS to de­ter­mine whether there was ev­i­dence that the pair were in­volved in tax eva­sion, money laun­der­ing, 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 “promptly or at all” the re­port’s “se­ri­ous” al­le­ga­tions to then min­is­ter of fi­nance, Pravin Gord­han, or the Hawks;

That Moy­ane dis­closed the con­tents of the re­port to Mak­wakwa and El­skie, and al­lowed them to keep ren­der­ing ser­vices to SARS. Moy­ane also stands ac­cused of re­peat­edly ask­ing the FIC 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 FIC re­port was pub­lished by the Sun­day Times in Septem­ber 2016 — Moy­ane ap­proved and signed off terms of ref­er­ence for an in­ves­ti­ga­tion that was “wholly inad­e­quate to en­sure an ef­fec­tive in­ves­ti­ga­tion into the re­port”;

That he failed to en­sure that SARS con­ducted a tax-eva­sion in­ves­ti­ga­tion into Mak­wakwa and El­skie, and failed to en­sure that in­ves­ti­ga­tors PwC were given ac­cess to the pair’s phones and com­put­ers, as well as 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 in­vest-

iga­tions in re­spect of many of the is­sues raised in the re­port”;

That Moy­ane’s “gross mis­han­dling” of the FIC re­port “brought SARS into dis­re­pute and caused se­ri­ous dam­age to [its] cred­i­bil­ity and le­git­i­macy”;

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 a sec­ond time, in March, by claim­ing that he had no in­volve­ment in SARS pro­cure­ment pro­cesses “whilst know­ing this not to be true”; and

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 sched­uled to be ques­tioned”.

Mabuza told the Sun­day Times that Moy­ane in­tended to plead not guilty to all 12 charges and would go to court to com­pel Ramaphosa to give oral ev­i­dence as to why he lost con­fi­dence in him.

“He just wants jus­tice, whether he goes back or not will be de­ter­mined by a law­ful and fair hear­ing and not the fun­da­men­tally flawed dis­ci­plinary process be­ing pro­posed.

“It is un­heard of that an in­quiry can be con­ducted on pa­per. It will de­prive Mr Moy­ane of his con­sti­tu­tional right to con­front his ac­cusers. To that end, Mr Moy­ane in­tends to chal­lenge the process, if nec­es­sary in court, so that his ac­cusers can tes­tify orally, as op­posed to on pa­per,” Mabuza said.

“The pres­i­dent is cen­tral to the mat­ter. He signed the charge sheet. He is in fact the only drama­tis per­sona. It is he who al­legedly ‘lost con­fi­dence’ in Mr Moy­ane . . . Ramaphosa must tes­tify or Moy­ane must walk scot-free. It’s as sim­ple as that.”

Moy­ane’s lawyers said he had told Ramaphosa he would ac­cept 18 months’ salary plus bonuses for three fi­nan­cial years and a “joint state­ment on his in­tegrity” to walk away from his po­si­tion. They said Ramaphosa ini­tially of­fered Moy­ane six months’ salary to re­sign, and later raised it to a year’s salary. Moy­ane re­fused.

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