Is Ramaphosa treating Moyane unfairly?
The future of how the disciplinary hearing against suspended South African Revenue Services (Sars) boss Tom Moyane will proceed remains in limbo, as a ruling by its chair Advocate Azhar Bham is likely to be made in two weeks.
The ruling will inform President Cyril Ramaphosa’s determination on whether he will suspend one or both inquiries as demanded by Moyane’s council. Moyane is facing another separate inquiry — led by retired judge Robert Nugent — currently underway into governance and administration at Sars.
Bham chaired the preliminary disciplinary hearing on Saturday where Moyane’s council continued with the question of whether he was being treated fairly, justly and lawfully by Ramaphosa. Moyane is facing charges of misconduct for violating his duties and responsibilities as commissioner at Sars.
Moyane and Ramaphosa’s representatives provided arguments on how the hearings should proceed particularly related to three central objections put forward by Moyane’s council.
Moyane’s advocate, Dali Mpofu, made submissions stating that his client was being treated “unfairly” because the hearings did not make it compulsory for oral submissions to be made and that he was subjected to a biased witness in Public Enterprises Minister Pravin Gordhan.
Another objection raised was that Moyane was being prejudiced because he is facing a disciplinary hearing, at the same time as the Nugent inquiry which focused on overlapping issues.
Mpofu argued that Moyane was being subjected to an unfair hearing as the terms of reference of the disciplinary hearing made oral evidence an exception instead of the rule which Mpofu said was not the “norm” in terms of the Constitution and the Labour Relations Act. The terms of reference give Bham the discretion to institute oral evidence and cross examination which Mpofu says is wrong.
He further stated that Moyane’s contract with his employer, Ramaphosa, also subjects him to the Sars disciplinary code and procedure which was initially highlighted in an affidavit provided by Minister of Public Enterprises, Pravin Gordhan.
The Sars disciplinary code is binding on all Sars employees. Under the code serious misconduct and disciplinary hearings must be subject to formal disciplinary procedures which make provision for oral evidence, said Mpofu.
Mpofu said there was no conceivable basis for the provisions of the law and the contract between the Moyane and the President to be deviated from. “You can’t take away so many rights from a human being for no reason just because you are the President,” he said.
Advocate Heidi Barnes, representing Ramaphosa argued that Bham did not have the power to determine whether oral evidence would be given and that it was actually “not necessary because the terms of reference require the inquiry to be fair and they don’t exclude oral evidence”.
Barnes said the disciplinary code cannot bind the president when he exercises his executive powers. “It makes no difference” said Barnes as the scope of the disciplinary code states that an employer can follow a “different process for management unit employees” in certain circumstances.
When Bham asked which circumstances justify a deviation from the code Barnes said it was apparent in the terms of reference.
Barnes referred to the section in the the terms of reference which stressed that it is urgent for the inquiry to be concluded quickly due to Sar’s critical role in collecting revenue.
Mpofu also questioned why Gordhan was the main deponent in an affidavit that forms the basis of the charge sheet against Moyane.
“Gordhan is a biased individual and there is hostility between him and Moyane. He is trying to rule from the grave as the commissioner of Sars,” said Mpofu, to further stress the fact that an oral inquiry was needed so that Gordhan could be questioned on this.
But Barnes described Mpofu’s complaint in relation to Gordhan’s authority as “bewildering”. “There is absolutely no need or requirement for Mr Gordhan to depose to an affidavit as a witness… what our opponents have obviously done is that [they] have confused the authority needed in order to institute proceedings and [that of] giving of evidence”.
On the unfairness of Moyane being a subject in two parallel inquiries Barnes argued that there was no “legal basis” to determine that the two processes were unfair. “It will often be the case that individuals will be subjected to overlapping processes and there is nothing inherently unfair in that”
“We know the commission of inquiry is inquisitorial, tasked with fact finding only, and that this process is adversarial, charged with making findings of guilt or innocence,” said Barnes.
Bham said he will, at the latest, provide both parties with his ruling sometime in the week of July 30.