Moyane seeks ConCourt intervention as his time runs out

(Paul Botes/M&G)

(Paul Botes/M&G)

Suspended South African Revenue Service (Sars) commissioner Tom Moyane has filed an over 700-page application at the Constitutional Court asking the court to urgently hear his matter to have President Cyril Ramaphosa’s decisions in appointing the Nugent commission and the disciplinary inquiry into his conduct as being in violation of the Constitution.

In the affidavit seen by the Mail & Guardian, Moyane finally addresses the four charges which he faces in his disciplinary hearing and provides more detail for his assertions that Public Enterprises Minister Pravin Gordhan cannot be involved in the inquiries against him.

Moyane, who was appointed commissioner in 2014, wants the Constitutional Court to hear his matter before his five-year term expires.

Earlier on Monday, the M&G reported that Moyane planned to approach the highest court in the land primarily to object to Ramaphosa’s decision to let the inquiries run concurrently as well as not being allowed to give oral evidence at the disciplinary inquiry.

Moyane further objects to the decision to cross-examine witnesses being at the discretion of retired Judge Robert Nugent, who is leading the Nugent commission, and Advocate Azhar Bham who is chairing the disciplinary inquiry.

The suspended commissioner has also raised his previous objections to Ramaphosa appointing Professor Michael Katz as an adviser to the Nugent commission “despite his disqualifying conflict of interests” and to the participation of Public Enterprises Minister Pravin Gordhan whom he claims is conflicted and has a “legendary hostile and disrespectful attitude and conduct” towards him.

Moyane wants the ConCourt to find Ramaphosa’s above decisions as being “in violation of the Constitution and thus unlawful and invalid”.

Moyane has questioned the basis of Ramaphosa suspending him and the “spurious and baseless” charges he faces at his disciplinary inquiry.

These charges include mishandling a Financial Intelligence Centre (FIC) report on former chief operations officer Jonas Makwakwa, making unauthorised bonus payments to Sars management, misleading Parliament on the Makwakwa issue and instructing a Sars official not to co-operate in a KPMG investigation into the alleged rogue unit.

On Makwakwa, Moyane said the charge was a “cut and paste job” of the complaints made by rights body Corruption Watch and nothing more than a “far-fetched witch-hunt”. 

Moyane says his disclosure of a FIC report into Makwaka was done by the book and would have been “long and easily been disposed of in a fair process”.

He said the charge relating to unauthorised bonuses was incorrect and “patently unsustainable”. He based this on the fact that he had sought legal opinions from two senior counsels who had said the finance minister “does not have the power to issue directions concerning the organisation and control of Sars staff or their deployment”.

A third legal opinion had a more direct statement: “the commissioner exercises sole prerogative and authority to decide issues of bonuses and salaries of Sars staff”.

“I obviously acted on the bona fide belief that all these legal opinions were correct and I continue to hold that belief,” said Moyane.

Moyane argued that the issue of him having misled parliament was cleared up by Parliament officials who, subsequent to the charge sheet being released, told the national treasury that “this charge was baseless because Parliament was never “misled” by anything, I told them. If this is denied, the necessary Hansard transcript will be procured”.

The final charge, which relates to Moyane supposedly telling former Sars official Helgard Lombard to not co-operate with a KPMG investigation was “illogical and, with the greatest respect, contrived, manufactured and objectively unsustainable”.

“It is based on not one but two false premises: firstly, that I was the inventor of the affected employees’ alleged anxiety about attending the KPMG investigation when he was the source thereof and I am no medical doctor.

“Secondly, it is common cause that I advised him to attend the very same inquiry at a later stage, hardly the actions of somebody who is instructing noncooperation, as alleged,” said Moyane.

Moyane outlines how because of his “more hands-on management approach” the revenue service was able to reach the R1-trillion revenue collection milestone and the highest tax to GDP ratio “in the world”.

“By any lawful measure or standard, my tenure at Sars was the most successful in the democratic era,” said Moyane.

He says it’s because of these achievements that Gordhan grew to resent him, further bolstering his mistaken belief that Moyane was behind the rogue unit allegations against him.

“Whatever the reasons, the enmity and acrimony directed at me by Gordhan and the others mentioned [Adrian Lackay and Ivan Pillay] is legendary, undeniable and a notorious well-known matter of public record,” said Moyane. 

Moyane recounts several incidents that he had with Gordhan which he describes the minister’s behaviour as being in “violation of the value of ubuntu” , insulting and humiliating.

A typical demonstration of this behaviour is provided to the court recorded telephone conversation where Gordhan accuses Moyane of thinking he is “god” and disrespectful because of his connections to the Hawks and the National Prosecuting Authority which he “conspires with every day”. 

In this exchange, Gordhan calls Moyane “cheeky.”

“The latter reference carries racist and condescending undertones as outspoken or assertive black people are usually referred to by other races as “cheeky kaffirs” or such other insulting terms”.

“For a grown man like myself to be referred to as “cheeky” by another person in the same age group as I am (I am 65 and Gordon is 69) was particularly hurtful, demeaning and an affront to my human dignity and self-worth”. 

In addition to the Constitutional Court having exclusive jurisdiction to hear cases that have to do with the President’s alleged failure to “fulfil his distinct legal obligations”, Moyane stressed how going through the normal route of starting in the high court and Supreme Court of Appeal was not appropriate because of the time constraints.

“Given that my contract is only left with twelve months before its expiry, and even though I harboured a legitimate expectation for its renewal, there still exists a risk of non-renewal,” he said.

“Accordingly, unless direct access is granted, I might not be in a position to vindicate all my constitutional rights violated by the respondents”.

Gordhan, Bham, Nugent, Katz and other Sars commission advisers, namely Advocate Mabongi Masilo and Vuyo Kahla, are respondents in the matter.

Tebogo Tshwane

Tebogo Tshwane

Tebogo Tshwane is an Adamela Trust financial journalism trainee at the Mail & Guardian. She was previously a general news intern at Eyewitness News and a current affairs show presenter at the Voice of Wits FM. Tshwane is passionate about socioeconomic issues and understanding how macroeconomic activities affect ordinary people. She holds a journalism honours degree from Wits University.  Read more from Tebogo Tshwane

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