Tom Moyane wants the Zondo commission to relook at what has become the erstwhile tax commissioner’s professional albatross — the damning report into governance issues at the South African Revenue Service (Sars).
On Wednesday, the former Sars head made his application to cross-examine Pravin Gordhan, the former finance minister and now public enterprises minister, who testified before the commission in November. Deputy Chief Justice Raymond Zondo, the commission’s chairperson, reserved his decision about this after a heated sparring match between Moyane’s counsel and Gordhan’s.
At the centre of the row were the findings of the Sars commission, chaired by retired Judge Robert Nugent, and which spelled the end of Moyane’s job as Sars commissioner.
Moyane’s advocate, Dali Mpofu, argued that Gordhan’s testimony could only be confirmed by an undue reliance on Nugent’s findings. But Gordhan, represented by advocate Michelle le Roux, argued that the Zondo commission should not be asked, through an application to cross-examine, to question Gordhan further about allegations that have already been dealt with by the Sars commission.
In his interim report, Nugent recommended immediate action to forestall further deterioration of the country’s tax administration system. Moyane was fired by President Cyril Ramaphosa shortly afterwards.
Moyane’s bid in February to have his dismissal overturned by the Constitutional Court was unsuccessful. His legal team approached the court in December last year after the high court dismissed his urgent application. He is now seeking to review his dismissal in the high court in a nonurgent application.
Moyane attached his affidavit in the Constitutional Court case to his Zondo commission application, which is replete with political theories and allegations of racism made against Gordhan. Moyane also raises Gordhan’s alleged “improper role in the Nugent inquiry”, accusing him of holding undisclosed meetings with the judge. Nugent told News24 in July that his meeting with Gordhan prior to his submission before the Sars commission was above board.
Gordhan gave evidence to the Zondo commission about the apparent irregularity of Moyane’s alleged approval of New Integrated Credit Solutions (NICS) being appointed as a debt collector at Sars. Gordhan alleged Moyane misled Parliament when he claimed not to have had any involvement in the appointment of NICS.
It was Gordhan’s evidence on the NICS contract that led the commission to notify Moyane that he was implicated by the minister’s testimony. The allegation was in an affidavit used in Moyane’s disciplinary hearing.
Moyane accuses Gordhan of pursuing a “vengeful and racist agenda” by making the NICS accusation, but does not counter it with his own version — something Zondo asked him about repeatedly.
In his affidavit opposing Moyane’s cross-examination bid, Gordhan said the issue could not be taken further by him because he has no other personal knowledge about the NICS matter.
Nugent found that Moyane’s was the final approval for the award of the NICS contract.
But Mpofu contended that the Sars commission report and findings are“completely irrelevant to the work of this commission” and no reliance could be placed on the correctness Nugent’s findings.
Moyane also sought to question Gordhan’s credibility by reviving the claims about the unlawful formation of the so-called Sars rogue unit and the minister’s role in it.
“State capture is just a phrase that we created, but state capture talks about the creation of a parallel state,” Mpofu said on Wednesday. “There is no difference in that and setting up a rogue unit which would spy on citizens.”
In his affidavit, Gordhan said Nugent could not find any reason to believe that the unit was unlawfully established.
Le Roux contended that Moyane’s purpose for his application was to rehabilitate his reputation by airing his grievances relating to the Nugent report. She argued that, in light of its limited resources, the commission could not be expected to repeat Nugent’s work.
The commission’s evidence leaders have registered similar concerns, specifically about the mountains of evidence produced by the numerous investigations of allegations of corruption at Eskom.
The commission’s own ongoing investigation into the beleaguered power utility has relied in part on these reports.
According to the head of the commission’s legal team, Paul Pretorius, the commission still has more than 250 witnesses to interview before it can complete its work by March 2020. Despite this vast task, the legal team will not accept reports, such as the Nugent report, as being correct without further evidence.
Pretorius told the commission on its first day that the legal team may propose that the commission should not undertake work that repeats other probes, “particularly where there is little or no controversy in relation to facts found and conclusions drawn”.
“But, Mr Chair, where there is controversy or possible controversy, the legal team, together with the investigation team, will inevitably have to do its own investigative work and thereafter the commission will be asked to make its own findings,” he said.