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The disciplinary hearing of the SA Revenue Service's suspended head Tom Moyane got underway on Saturday with Moyane's lawyer Dali Mpofu criticising its terms of reference as “irrational and unlawful”.
Mpofu spent two hours arguing that one of the procedures at the hearing which prevents Moyane from giving oral evidence was constitutionally unfair. He stated that other senior public officials who have faced similar inquiries were afforded a chance to present oral evidence.
“If you are going to deviate from that process, then you must give legal reasons. Oral evidence is no discretion, it is compulsory. There are no exceptional circumstances that have been provided for the deviation,” said Mpofu.
“A constitutionally fair process includes an oral hearing and you cannot arbitrarily discriminate against Moyane," he said.
On March 19 President Cyril Ramaphosa suspended Moyane as the head of the tax agency after he refused to step down voluntary. The president said at the time in a letter he had “lost confidence in his ability to lead the South African Revenue Service". He was later served with a notice of a disciplinary inquiry.
Ramaphosa wrote that SARS under Moyane's leadership had been marked by a "deterioration in public confidence".
Moyane, appointed SARS commissioner in September 2014 by former President Jacob Zuma, was present at the hearing.
Mpofu also questioned the legality of an affidavit deposed by Public Enterprises Minister Pravin Gordhan, accusing him overstepping his authority and acting as a “biased individual”. Gordhan was SARS commissioner between 1999 and 2009.
Mpofu charged that his affidavit - which accused Moyane of 'gross dereliction of duty' - not worth the paper it was written on, as Gordhan had no authority over the tax service matters. He also said it was “incompetent” as it was based on a charge sheet.
Mpofu further likened Gordhan to someone who shows up at a party they are not invited to and runs the show. “Gordhan’s affidavit is unlawful because it is sourced from a wrong power,” he said.
Ramaphosa's legal representative, Heidi Barnes, dismissed the argument that depriving Moyane of a chance to give oral evidence was prejudiced, saying it was "permitted by the disciplinary code".
During Moyane’s three-year tenure at the tax collection service a number of top officials resigned and some investigative units were shut down amid allegations of poor management and a dip in tax revenue.
The disciplinary process chaired by Advocate Azhar Bham is separate from another probe, the Nugent Commission of Inquiry, which was appointed in the year by Ramaphosa to investigate tax administration and governance at SARS.
In late June Moyane's legal representatives also made a submission to the Nugent commission, which its chaired by former Judge Robert Nugent, asking that it be put on hold or "disestablished" while the disciplinary hearings get underway.
Nugent at the time labelled the submission a “disgrace” that was littered with abuse.
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