Retired Judge Robert Nugent has defended his recommendation that suspended commissioner Tom Moyane should be permanently fired, saying his finding is final and considered.
Earlier this week, Nugent submitted an interim report to President Cyril Ramaphosa on the commission of inquiry into the South African Revenue Service (Sars). The commission is investigating issues of tax administration and governance during the period that Moyane was at the helm.
At the beginning of Thursday’s hearing, Nugent provided clarity on the implications of the recommendation he made and responded to the criticism directed at the interim report.
Nugent said when Ramaphosa set up the commission the expectation was that if — while conducting its duties — the commission came across material issues at Sars these would be reported to Ramaphosa so he could act if necessary.
“That is what an interim report is. It is simply a report that is made in the interim before you can get to the final date when you can start reporting fully and an interim report may include decisive final findings that you will not be going back to in the final report,” Nugent said.
“We say to the president we have reached conclusions on this issue and that is the final recommendation, it is not provisional. It’s not saying I am thinking about this and I’ll come back to it later.
“It says I have thought about that and that is our conclusion, you can act on it now if you want to act on it, it’s up to you Mr President,” said Nugent.
On Tuesday, Ramaphosa made Nugent’s interim report public. In it, Nugent recommends that Moyane be removed as commissioner “without delay” in order to stabilise the operations at Sars.
“We stress that the replacement of Mr Moyane is not a panacea, but only the first necessary measure without which there is no possibility of rectifying the damage that has been done to SARS,” Nugent said in the report.
He added that: “Any further recommendations will be fruitless, hence our recommendation at this stage, without awaiting the Commission’s final report”.
Nugent added that he had provided Moyane with several opportunities to respond to the allegations levelled against him during the hearings. The interim report — along with its extensive annexures — will be uploaded on the Sars inquiry website to show this, he noted.
The report on the Presidency’s website did not include annexures.
“He was given an opportunity to say what he needed to say but you know what? There comes a time when you have got to call it hot at some stage. If you want to say something say it and you don’t? Well we have got to move on,” said Nugent.
Moyane’s lawyer Eric Mabuza has said that Nugent’s recommendations prejudiced Moyane because they assumed the powers of Advocate Azhar Bham’s disciplinary inquiry and those of Ramaphosa.
In a separate disciplinary process, Moyane faces charges of misconduct and being in violation of his duties in terms of the Sars Act and the Public Finance Management Act.
Mabuza said Nugent was going beyond his terms of reference.
Ramaphosa has given Moyane until next week Wednesday to respond to the recommendation that he should be fired immediately.
Nugent said the commission found it urgent to make this recommendation. Sars was in the middle of the tax year and it would not be beneficial to wait for the final report to act, while the revenue service continued to battle to collect tax.
“That’s why we said you should act now… and whether the President decides to do it is his prerogative,” said Nugent.
“That was our view, that is the view we stick with, and we won’t go back to that in the final report”.
The commission continues.