Former Sars commissioner, Tom Moyane. (Paul Botes/M&G)
Erstwhile South African Revenue Service (Sars) commissioner Tom Moyane has been denied leave to cross-examine Public Enterprises Minister Pravin Gordhan before the Zondo commission of inquiry into state capture.
Deputy Chief Justice Raymond Zondo, the commission’s chair, announced on Tuesday that Moyane would not be granted an opportunity to grill Gordhan who last year detailed the enmity that arose between him and the former tax boss.
Zondo cited Moyane’s failure to explain the extent to which he was implicated by the minister in allegations of state capture and to respond with an opposing version of allegations made against him as reasons why Moyane would not be granted leave to cross-examine Gordhan.
Moyane applied to cross-examine Gordhan in March, a bid which was strongly opposed by the minister.
On Tuesday, Zondo explained that a named party can only be allowed to cross-examine a witness insofar as they are actually implicated in wrongdoing. If a person is not implicated — or cannot be said to be implicated — in a witness statement, they are disqualified from cross-examining the witness, Zondo said.
As per the commission’s regulations, an implicated party must identify the parts of the witness statement in which they are implicated. Implicated parties must also respond to the parts of the statement in which they are implicated and put up their own version.
An implicated party must take the commission into their confidence by putting up their own version, Zondo said. The reason for these rules is to ensure that an implicate party “does not simply present a bare denial” of the witness’s version, he explained.
As the chairperson of the commission, Zondo must determine “whether it is necessary or in the best interest of the function of the commission” to grant leave to commission to an implicated party.
Moyane “does not at all respond at all to certain parts of Mr Gordhan’s statement that implicates him”, Zondo said on Tuesday,
Zondo noted that Moyane did not respond to Gordhan’s allegation, that he blatantly refused to account to him when he was still finance minister in 2016. Gordhan claimed Moyane would sometimes directly report to then president Jacob Zuma.
Further, Moyane failed in his application to “make it clear which part of the statement are disputed or denied”, Zondo said.
Zondo pointed to Moyane’s failure, in both his founding and supplementary affidavits, to the commission to establish why it is in the best interest of the commission for him to be allowed to cross-examine Gordhan.
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.
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.
Zondo said on Tuesday that, in his application to cross-examine Gordhan, Moyane failed to present “a competing factual version” of this allegation. “In response to this the applicant [Moyane] presents a bare denial,” he noted.
“He did not proceed to give his full version as to what he said in Parliament … It seems to me in this regard … the applicant fails to give his version of what happened,” Zondo said.
Last year, the Nugent commission found that Moyane’s was the final approval for the award of the NICS contract.
Moyane was fired as Sars commissioner by President Cyril Ramaphosa shortly after retired Judge Robert Nugent recommended immediate action to forestall any further deterioration of our tax administration system.
In March Gordhan’s counsel, 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.
But Moyane’s counsel, Dali Mpofu SC, contended that Gordhan’s testimony could only be confirmed by an undue reliance on Nugent’s findings. He further argued 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.
On Tuesday, Zondo said however that Moyane “fails to say why such findings are irrelevant”.
In his application Moyane also accused the Gordhan of racism and of having a personal vendetta against him. But Zondo said that Moyane failed to show why cross-examining Gordhan in this regard is in the commission’s best interest.
Zondo made a similar decision in relation to Moyane’s reference in his application to the so-called Sars rogue unit.
In his application, Moyane questioned the minister’s credibility by reviving the claims about the unlawful formation of the unit and the minister’s role in it. In his affidavit opposing Moyane’s application, Gordhan said the Nugent commission could not find any reason to believe that the unit was unlawfully established.
“It seems to me that the applicant has not shown with regard to the so-called rogue unit why it is necessary or in the best interest of the commission to grant him leave to cross-examine Mr Gordhan,” Zondo said.