Tom Moyane has given Ramaphosa until 12pm on November 9 to withdraw his removal or face urgent court proceedings (David Harrison/M&G)
Tom Moyane — the former South African Revenue Service (Sars) commissioner — is threatening legal action against President Cyril Ramaphosa unless the president withdraws the decision to fire him.
In a letter sent to Ramaphosa by Mabuza Attorneys — which is also addressed to Finance Minister Tito Mboweni — the former Sars boss demands that Ramaphosa reverse the decision to fire him and await the outcome of the pending Constitutional Court application and/or the disciplinary inquiry headed by Advocate Azhar Bham.
Moyane has given Ramaphosa until 12pm on November 9 to withdraw his removal or face urgent court proceedings where Moyane will ask for an order declaring his dismissal as “irrational, unlawful and invalid”.
Moyance lawyers says they will also seek an interdict against Ramaphosa that he not accept or implement any recommendations of the Sars commission of inquiry looking into issues of tax administration and governance at the revenue service during the time Moyane was at the helm. The interdict will also bar Ramaphosa from appointing a new Sars commissioner.
Ramaphosa fired Moyane on November 1, in line with recommendations made by retired Judge Robert Nugent in an interim report from the Sars commission looking into tax administration and governance issues at Sars.
Following Moyane’s sacking, Ramaphosa then filed papers at the Constitutional Court on Friday where he said that Moyane’s application to declare unfair and unconstitutional the decision to continue with the disciplinary hearing and the Sars inquiry concurrently, was rendered “moot” by the fact that he had been fired.
However, Moyane’s lawyers said it is not clear how his court application can be rendered irrelevant by his removal from office considering that the decision to fire him is based on the recommendations made by the Nugent commission whose legality is called into question in the court papers.
Part of the relief that Moyane is seeking is that the ConCourt declare that commission “unlawful, conflicted and improperly constituted”.
“To label this as circuitous, illogical and irrational reasoning would be an understatement indeed!” the letter states.
Moyane further accuses Ramaphosa of not dealing with the representations made by Moyane prior to his sacking, particularly his contestation that the Sars commission’s terms of reference do not allow it to make recommendations outside of its mandate — like whether Moyane should be fired or not.
Moyane has previously argued that the recommendation by Nugent to have him permanently removed from office usurped the powers of the president and the disciplinary inquiry. However, Nugent explained that he was entitled to make the recommendations because the commission’s concerns were not disciplinary but related to the management of Sars.
Moyane’s lawyers said should the Constitutional Court find that the Nugent commission was either not properly constituted, acted beyond its terms of reference or conducted an improper inquiry which lead to invalid findings, this would call into question Ramaphosa’s decision to fire Moyane.
“In the event of any one or more or all of the said assumptions being found to be incorrect by the Constitutional Court, the entire foundation on which the purported termination of office is premised must and will crumble”.
“Such conduct leads not only to an absurdity but borders on contempt of court or at least a reckless disregard of pending court processes and the rule of law. No person is allowed to pre-empt court outcomes in such a manner,” said the lawyers adding that a reasonable President who took an oath to uphold the constitution would not have done that.
Even if they were wrong on Nugent commission, Moyane’s lawyers argue legally Ramaphosa cannot terminate his contract even if it was breached, when there is a pending disciplinary inquiry such as the one chaired by Bham.
According to Moyane’s lawyers: “This is known as the doctrine of election.”
“In simple terms, its purpose is to prohibit or prevent the aggrieved party to a contract from blowing hot and cold as to which remedy it can seek or obtain against the party allegedly in material breach of the said contract,” the lawyers explain.
Moyane’s lawyers also calls Ramaphosa’s affidavit “self-contradictory”. Cited is an example where in one paragraph the president explains that: “it is abundantly clear that all the relief sought has been rendered moot by my decision to remove Mr Moyane”
However in a subsequent paragraph he says: “the only challenge which subsists is his challenge to my refusal to remove Professor Katz as an assistant in the SARS Commission”.
“At least one, if not both, of these two statements is incorrect,” states the letter.
Moyane’s lawyers claim that Ramaphosa’s dismissal letter together with the affidavit “is riddled with such extreme examples of self-evident irrationality that it is not possible to discern what is essentially sought to be communicated therein”.
“We hereby urge, implore and warn you never to forget that ours is a constitutional democracy built on the rule of law and the duty to respect the human dignity of all our fellow human beings or that you took an oath of office which imposes a solemn duty upon you to do justice to all.
“So help me God,” the letter concludes.
Read Moyane’s letter to Ramaphosa below:
Letter to President Ramaphosa from former Sars boss Tom Moyane by Mail and Guardian on Scribd