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Suspended SARS commissioner Tom Moyane is demanding that President Cyril Ramaphosa and Public Enterprises Minister Pravin Gordhan appear before his disciplinary inquiry so they can face cross-examination.
At the disciplinary hearing, which began in Sandton yesterday, Advocate Dali Mpofu, who appeared on behalf of Moyane, insinuated that Ramaphosa and Gordhan should appear before the hearing to explain themselves.
Ramaphosa suspended Moyane in March, arguing that the public had lost confidence in his leadership as a result of the taxman’s R50bn revenue shortfall, his controversial handling of the case involving his former second-in-command, Jonas Makwakwa, and other scandals. Last month Gordhan, who was finance minister when former president Jacob Zuma appointed Moyane as SARS commissioner in 2015, deposed a stinging affidavit, accusing him of a “profound lack of judgement” and of “gross dereliction of duty”.
Mpofu made a compelling argument suggesting that Moyane wanted Ramaphosa, as the one who suspended him, and Gordhan, who was one of the main witnesses, to appear before the hearing to be grilled, cross-examined and provide oral evidence.
“The procedure prescribed in the terms of reference and the charge sheet, respectively, is unlawful, unfair and unconstitutional and manifestly oppressive in that it automatically excludes oral evidence and/or provides for the leading of any oral evidence only an as exception and subject to the discretion of the chairperson,” Mpofu argued.
“Oral evidence ought to be the norm, as is the case in any fair disciplinary hearing.”
In his presentation to the hearing presided over by Advocate Azhar Bham SC, Mpofu said Moyane had three problems with the inquiry: the right to oral evidence and cross-examination, the admissibility and content of Gordhan’s affidavit, and the fact that there are two inquiries running concurrently.
Ramaphosa has also appointed a commission, headed by retired Judge Robert Nugent, to look into tax administration under Moyane’s leadership.
Mpofu said that Gordhan, in his affidavit, claimed to rely on documents which should only be in the custody of Finance Minister Nhlanhla Nene.
He also questioned Gordhan’s authority to depose an affidavit on behalf of the finance ministry, claiming that it amounted to usurping Nene’s powers or alternatively, Nene’s unlawful abdication of his duties.
“To simply rock up at a party into which you are not invited and run the show, I’m sorry, it is not the rule of law,” he said, adding that Gordhan’s affidavit was not worth the paper it was written on.
“He is a biased individual. There is hostility between him and Moyane and he now wants to rule from the grave as the commissioner of SARS. How do we deal with these things by just looking at a piece of paper?
“This is not the kind of case where Gordhan can simply throw a piece of paper at us and go away.”
If Gordhan’s affidavit was admissible, Mpofu said, he should give oral evidence to explain his bias and the evidence he gave to the Nugent Commission, which was disparaging to Moyane.
However, Advocate Heidi Barnes, who appeared on behalf of the presidency and SARS, said it was important for Moyane to understand that he was not involved in a criminal hearing.
“The legal standards on which this inquiry is to be conducted are that it must be lawful, rational and fair,” she said.
“As we will demonstrate below, the procedure that has been adopted clearly satisfies this standard. In fact, as it will become apparent, the terms of reference signed by the president go beyond what is strictly necessary in order to ensure fairness to Moyane.”
If, as Moyane has repeatedly stated through his attorney, he seeks to clear his name as a matter of urgency, one would have expected him to respond to the substance of the allegations contained in Gordhan’s affidavit. But this has not happened, Barnes argued.
Barnes also contended that until now, Moyane has sought to turn a sound disciplinary procedure on its head by refusing to answer to the substance of the allegations against him until his technical point has been determined.
“In so doing, Mr Moyane is effectively sabotaging the speedy conclusion of his disciplinary hearing. This has serious implications for SARS, which needs to finalise this inquiry as a matter of urgency. This is to ensure certainty and stability in the leadership of SARS and fiscal sustainability necessary for the delivery of government’s constitutional obligations to its people,” she said.
“Mr Moyane has said nothing under oath in response to the charges levelled against him.”
The paradox, said Barnes, was that Ramaphosa and SARS were not entirely against oral representations, to the extent that they were necessary.
Bham will make his ruling next week.
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