5 reasons why Tom Moyane’s disciplinary was postponed | Fin24
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5 reasons why Tom Moyane’s disciplinary was postponed

Oct 05 2018 06:39
Kyle Cowen, News24

Suspended SARS boss Tom Moyane on Thursday claimed a crucial victory in the ongoing battle over his removal from the tax agency by President Cyril Ramaphosa in March this year.

He successfully brought an application before Advocate Azhar Bham, who is chairing a disciplinary inquiry into serious charges against Moyane brought by the president, to postpone the hearing until a Constitutional Court application he filed this week has been finalised.

Considering that in July, Bham had dismissed an application brought before him arguing the same issues now raised before the highest court in the land, it took nearly 30 minutes for Bham to explain his reasoning for granting the postponement now.

Here are five key takeaways from the ruling:

1. Not frivolous

Bham described both the charges against Moyane and his procedural objections to the disciplinary and the Nugent Commission of Inquiry into SARS as “not frivolous”.

The charges relate to Moyane’s handling of a damning Financial Intelligence Centre (FIC) report into cash payments to Moyane’s second in charge at SARS Jonas Makwakwa, making unauthorised bonus payments to SARS management, misleading parliament and instructing a SARS official not to co-operate with the KPMG investigation into the SARS High Risk Investigations Unit.

Bham explained that through allowing the ConCourt to hear the matter he was giving Moyane a fair chance to ventilate his objections to the evidence, procedures and past rulings by Bham with finality.

In essence, if the ConCourt finds against Moyane, he will have nowhere left to go but to face the disciplinary.

2. Just in time

Bham explained that if he denied the application for postponement, Moyane would approach the nearest high court to interdict the proceedings.

In his experience, Bham said, the ConCourt typically deals with matters far quicker than the lower courts and by allowing the postponement in light of the application to the ConCourt, it would save considerable time in dealing with the charges.

3. Waste not, want not

If the ConCourt ruled in Moyane’s favour and the disciplinary hearing continued the entire process would be wasted, Bham found.

Simply, Bham believes that continuing with the disciplinary now before the ConCourt has made a decision would be a pointless exercise for if the court upholds Moyane’s prayers, the disciplinary would be moot.

4. South Africans need stable leadership at SARS…yesterday

Bham highlighted the importance and national interest in ensuring that the leadership of SARS was stabilised.

It is necessary to deal with the charges against Moyane fairly and with speed. This is crucial to Ramaphosa’s ability to stabilise the leadership of SARS which since Moyane’s suspension in March, has been under the watchful eye of acting commissioner Mark Kingon.

5. Bham’s caveat

Bham was also at pains to make it abundantly clear that if the ConCourt bid were to fail, he would institute very srtcit timelines on both Moyane and Rampahosa to finalise the disciplinary hearing.

Essentially, Bham issued a subtle warning – if the ConCourt was to deny Moyane, he will have to report before Bham almost immediately to defend the charges.

What is not clear is whether or not the ConCourt will grant Moyane direct access, meaning it may decide that the lower courts are the best place to deal with the matter after all.

This will put paid to Bham’s intention to save time and we will then be unlikely to see an end to the Moyane vs Ramaphosa battle in the very near future.

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sars  |  tom moyane  |  constitutional court  |  tax


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