/ 13 March 2019

Moyane’s cross-examination bid an attempt to review Nugent inquiry

Former Sars commissioner Tom Moyane.
Former Sars commissioner Tom Moyane. (David Harrison/M&G)

Erstwhile South African Revenue Services (Sars) commissioner Tom Moyane will have to wait to hear whether or not he will be allowed to grill Public Enterprises Minister Pravin Gordhan at the Zondo commission of inquiry into state capture.

On Wednesday, Deputy Chief Justice Raymond Zondo reserved his decision to grant Moyane leave to cross-examine Gordhan. The minister testified before the commission last November.

Moyane was represented in his application by advocate Dali Mpofu who argued that Gordhan’s testimony — which Mpofu said cast aspersions on Moyane’s reputation — must be tested.

Gordhan, represented by advocate Michelle le Roux, opposed Moyane’s bid, arguing that the Zondo commission should not be asked to further probe Gordhan on allegations that have already been dealt with by the Sars commission.

The Sars commission, headed by retired Judge Robert Nugent, last year recommended immediate action to forestall any further deterioration of the country’s tax administration system. Moyane was fired as Sars commissioner by President Cyril Ramaphosa shortly afterwards.

“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 his interim report.

Nugent’s final report was even more damning in this regard: “What has become clear is that what occurred at Sars was inevitable the moment Mr Moyane set foot in Sars. He arrived without integrity and then dismantled the elements of governance one by one. This was more than mere mismanagement.”

During his testimony before the state capture inquiry last year, Gordhan made reference to the Nugent commission, which he had submitted an affidavit to.

On Wednesday, Mpofu said Gordhan’s references to the Nugent commission are irrelevant, adding that the Zondo commission cannot rely on the findings of another commission.

In February this year, Moyane’s bid to have his dismissal overturned by the Constitutional Court was unsuccessful. Moyane’s legal team approached the court in December last year after the Pretoria high court dismissed his application.

Moyane sought to review his dismissal on the grounds that the Nugent commission was “unlawful and improperly constituted”. In his papers to the Constitutional Court, Moyane also argued that the commission was not conducted properly and acted beyond its mandate.

Le Roux argued that Moyane’s application to cross-examine Gordhan amounts, in effect, to an attempt to review or reopen the Nugent Commission.

“Mr Moyane has legal avenues open to him if he wishes to dispute the findings of the Nugent Commission. Cross-examination of Minister Gordhan is not one of them,” Le Roux said in her heads of argument.

The Nugent commission’s findings relating to the so-called Sars rogue unit became a particular bone of contention on Wednesday.

Mpofu argued that Gordhan’s alleged role in the rogue unit was tantamount to state capture.

During his testimony last year, Gordhan detailed the events leading up to criminal charges being laid against him by Moyane in May 2015 in relation to the rogue unit allegations.

On Wednesday, Mpofu argued that — despite Gordhan’s allegation that Moyane had acted maliciously in laying the charges — the then Sars commissioner was simply doing his job.

Le Roux argued that Moyane’s application is an attempt to revive the narrative of an unlawful rogue unit at Sars, when Nugent found the unit was lawfully established in his report to Ramaphosa.

“Mr Moyane’s stated purpose for his application is to rehabilitate his reputation, improve his career prospects, revive the wholly discredited narrative of there being a so-called “rogue unit” at SARS, air his grievances regarding his removal by President Ramaphosa from the critical post of commissioner of SARS, ventilate what appears to be a personal vendetta against Minister Gordhan and, finally, use the platform of the Commission to speculate on political theories regarding the Minister’s history in the struggle and role as a member of the executive,” Le Roux contended.

But Mpofu argued that the commission can not only rely on Judge Nugent’s findings in relation to the rogue unit allegations.

Le Roux responded saying that Moyane has not actually launched a review of the Judge Nugent’s findings, but has challenged the commission on its process.

Zondo suggested that in light of Moyane’s challenge to the Nugent commission, it may not be appropriate for the Zondo commission to seek to make findings on the same issue.

“If he [Moyane] is successful … it may well be that the review court says ‘well those findings are set aside completely’,” Zondo said.