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Moyane tackles Gupta tax refunds, ‘enmity’ with Gordhan in new affidavit

Nov 16 2018 18:08
Carin Smith

The "enmity" between Public Enterprises Minister Gordhan and former SA Revenue Service (SARS) commissioner Tom Moyane is not irrelevant in Moyane's Constitutional Court application to have him reinstated, Moyane says.

In a replying affidavit in the matter, seen by Fin24, Moyane states that what he terms "the enmity" with Gordhan is "coupled with the unanswered allegations of racism and the flagrant impairment of my dignity".

The replying affidavit comes in response to an answering affidavit submitted by President Cyril Ramaphosa, who is the first respondent in the matter.

'Bias'

Moyane reiterates that, in his view, he has made out a prima facie case of bias towards him by Ramaphosa.

In the replying affidavit Moyane also refers to allegations made against him regarding VAT refunds as "contrived".

"The allegations were dropped when it was discovered that the Gupta VAT refunds were implemented not by me but by the acting commissioner Mark Kingon.

"It also embarrassingly transpired that the latest Gupta VAT return of some R89m was effected in April 2018, well after my suspension," states Moyane.

"The VAT issue was not even raised with Mr Kingon when he appeared before the SARS Commission. Instead, Mr Nugent saw it fit to heap Mr Kingon with praise even before he could give his testimony."

'Irrational' conduct

Moyane's ConCourt application was served on September 28 and filed on October 1, 2018. A disciplinary inquiry against him was set down for hearing on October 4 and 5, before Advocate Azhar Bham.

On October 4, Moyane moved an application for a postponement or temporary stay of proceedings pending the outcome of his ConCourt application. Ramphosa is opposing the ConCourt application.

Moyane claims Ramaphosa was acting in an irrational manner when he decided to "unlawfully" remove him as SARS Commissioner while the disciplinary inquiry was still "in motion".

More importantly for Moyane, he seeks a ruling that should measure what he calls "the irrationality" of Ramaphosa's conduct to fire him.

In his replying affidavit, Moyane quotes Bham as having said "...from Mr Moyane's perspective, I've got to consider that if I were to continue with the proceedings now, he may effectively be denied the right of ventilating the matters he's raised before the Constitutional Court..."

Moyane continues by saying he is advised "that a reasonable president, who was in possession of the abovementioned ruling, ought to have taken such pronouncements into account and could never have come to the conclusion that the Constitutional Court process can be ignored and the recommendations of the SARS Commission could be accepted and or implemented without violating the constitution in several ways".

Moyane maintains that the recommendations made by the SARS Commission for Ramaphosa to fire him, fell outside its powers and were "irrational and self-contradictory and unreasonable in the circumstances and unfair in the constitutional sense and tainted by bias".

"I am entitled to challenge the rulings of both the SARS Inquiry and the disciplinary inquiry in a court of law and to exhaust my legal remedies. I am similarly entitled to challenge the decisions of the president...Only once these rights have been fully and effectively exercised can it be determined whether or not the president was entitled to remove me from office," states Moyane.

"In the present case it follows that it would be in the interests of justice to hear the application. The lawfulness or otherwise of the removal, far from being moot, is actually dependent upon the outcome of the Constitutional Court application."

Moyane has also brought an application for interim relief in the Gauteng High Court pending the finalisation of the ConCourt application.

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