It will be in the public interest for Chief Justice Mogoeng Mogoeng to exercise his discretion to allow an expedited hearing into the protracted Tom Moyane legal case, according to an affidavit filed by the axed South African Revenue Service commissioner on Thursday.
Moyane asked the apex court to hear his arguments as the matter “involves multiple and complex constitutional issues involving a senior employee and the highest office in the land”.
Judge Hans Fabricius in a scathing ruling at the time referred to the conduct of the former Sars boss as “abominable”.
His previous attempt to petition the Constitutional Court directly was dismissed on November 21 and he was told instead to seek relief from the lower courts. Moyane argues in new court papers that the “issues raised in this matter are predictably destined to end up in this court and may no longer be properly ventilated in the lower courts”.
He asks Mogoeng to set a date for the case to be heard soon, saying that Ramaphosa has indicated under oath that the appointment of a new commissioner is “imminent”.
If the matter is resolved soon, it might further pave the way for this appointment to be made “without delay and in the public interest”.
“Contrary to what was stated by Fabricius J, the matter involves far more than a salary. It also involves human dignity and ubuntu,” Moyane states.
The former Sars boss, who insists his dismissal violated procedural fairness, in court papers also takes issue with Judge Fabricius referring to his conduct as “abominable” and awarding the respondents punitive costs (higher legal fees than the court usually allows).
“What is particularly chilling about the punitive cost order is that the learned Judge makes no bones about the fact that it is intended to send a message to society and to other would-be challengers of state power,” the court papers read .
‘Angry tone of judgment’
Moyane further argues that the “angry tone of the judgment” is reminiscent of the anger displayed by retired Sars inquiry commission chair Judge Robert Nugent, and the matter should be heard before a “dispassionate bench” of more than one judge.
According to Moyane, the Pretoria high court did not deal with his argument that Ramaphosa was in breach of his oath of office by appointing tax expert professor Michael Katz to assist the Nugent commission while having an ongoing attorney-and-client and personal relationship.
He also claims that Fabricius ignored his evidence that Nugent was biased against him as he had met with his long-time critic Public Enterprises Minister Pravin Gordhan before he gave evidence to the commission.
The final Nugent report, sent to President Ramaphosa on Friday, stated that Moyane went about “seizing control of Sars as if it was his to have” and instead of good management brought with him a “culture of fear and intimidation”.
“What has become clear is that what occurred at Sars was inevitable the moment Mr Moyane set foot in Sars,” stated the report’s authors. “He arrived without integrity and then dismantled the elements of governance one by one. This was more than mere mismanagement. It was seizing control of Sars as if it was his to have.”