Retired judge Robert Nugent has filed papers in the Constitutional Court asking it not to hear suspended commissioner Tom Moyane’s application to put the inquiry into the South African Revenue Service (Sars) on ice.
Moyane wants the highest court to set aside as unconstitutional President Cyril Ramaphosa’s decision to conduct the commission, which is chaired by Nugent, and Moyane’s disciplinary hearing at the same time.
Nugent’s commission is looking into tax administration and governance at the revenue service during the time that Moyane was at the helm.
The Mail & Guardian understands that the chair of the disciplinary inquiry, Azhar Bham, will not oppose Moyane’s application. Moyane faces charges of misconduct and being in violation of his duties in terms of the Sars Act and the Public Finance Management Act.
The Nugent commission last held public hearings two weeks ago at which it was told that at least two irregular tenders were awarded to international firms and that whistleblowers did not come forward because they feared they would not be protected.
In papers filed by Nugent on Thursday, he submits that the case does not fall into the Constitutional Court’s exclusive jurisdiction and that the court should not hear Moyane’s application, adding that it would not be “in the interests of justice to do so”.
Nugent is named as the third respondent in Moyane’s application to the Constitutional Court, which was filed about two weeks ago. Moyane brought the case urgently, arguing that going through the normal route of approaching the high court and the Supreme Court of Appeal would take years and his term at Sars was coming to an end.
“Given that my contract is only left with 12 months before its expiry, and even though I harboured a legitimate expectation for its renewal, there still exists a risk of non-renewal. Accordingly, unless direct access is granted, I might not be in a position to vindicate all my constitutional rights violated by the respondents,” Moyane argued.
He added that it had become objectively semi-urgent ‘‘because of the lingering “threats of unlawful dismissal” by Nugent. Moyane said he was surprised when, on September 7, Nugent sent a letter to his lawyers saying that in his interim report to Ramaphosa he would recommend that, “in the interest of Sars and the country, [Moyane] should immediately be removed from office and be replaced by another person as commissioner”.
Both Bham and Nugent have heard representations by Moyane’s lawyers to suspend either one or both the hearings as well as to remove Public Enterprises Minister Pravin Gordhan from presenting evidence in either of their processes.
But the two did not rule in favour of any of Moyane’s demands, saying only the president had the power to make those decisions, given that he had set up the hearings and penned the terms of reference.
In his application, Moyane said by making a recommendation for his permanent removal Nugent had exceeded his powers as set out in the commission’s terms of reference and he also “usurped” the powers of the president and the disciplinary hearing.
However, Nugent said: “The impugned action conduct on behalf of the third respondent is not final in effect and is consequently not amenable to review”.
“There is in effect no basis for setting aside or reviewing the impugned conduct … [and] there is no basis for awarding costs or punitive costs against the third respondent,” said Nugent in the papers.
On October 4, Bham granted an application to postpone the disciplinary inquiry pending the finalisation of the Constitutional Court case. This came after Moyane’s counsel, Dali Mpofu, argued that he would approach the high court for an interdict to stop the disciplinary inquiry from proceeding.
The Nugent commission will continue next week.
It is understood that Gordhan, Ramaphosa and others have not yet filed responding papers.
Tebogo Tshwane is an Adamela Trust business reporter at the Mail & Guardian