Deputy Chief Justice Raymond Zondo this week drew a line under erstwhile tax commissioner Tom Moyane’s bid to ventilate the South African Revenue Service (Sars) “rogue unit” allegations at the commission of inquiry into state capture.
On Tuesday, Zondo said Moyane would not be allowed to cross-examine Public Enterprises Minister Pravin Gordhan on the formation of the high-risk intervention unit, the so-called rogue unit, which Moyane insists was unlawful. “The applicant has not shown … why it is necessary or in the best interest of the function of the commission that he should be granted leave to cross-examine Mr Gordhan.”
Although Moyane’s application was, by and large, dismissed by Zondo, he reserved his decision on one aspect: the allegation that Moyane had an ulterior motive when he laid charges relating to the unit against Gordhan. Zondo asked for further submissions about allegations of malice on the part of Moyane when he laid charges against Gordhan, then the minister of finance, in 2015.
“When one reads Mr Gordhan’s founding affidavit there are places where one gets the impression that he may be suggesting that in laying charges against him, the applicant was part of a scheme that sought to capture treasury,” Zondo said.
Moyane’s counsel, Dali Mpofu SC, wrote that Gordhan’s “conduct is misleading this commission into believing that Mr Moyane was motivated by malice in reporting the matter to the police”. Mpofu added this “is not only unlawful but constitutes another attempt falsely to accuse Mr Moyane of wrongdoing”.
In an affidavit supporting his application, Moyane suggests “the role of the rogue unit” as a key theme for the cross-examination of Gordhan.
“If, in the criminal proceedings, the rogue unit is subsequently and once again proven to have existed, unlawfully so, then the entire cover of Gordhan, the archangel, will have been blown, including all its manifestations, lies and distortions all contained in his affidavit to this commission in one way or the other,” Moyane said.
He attached the report by Muzi Sikhakhane SC, as well as a still-classified 2014 report on the unit by the then inspector general of intelligence, Faith Radebe, to his application. Both reports found that Sars did not have the legal powers to gather intelligence.
In response to Moyane’s application, Gordhan accused Moyane of “trying to resuscitate and revive the so-called ‘rogue unit’ narrative”. He further contended that allegations relating to the unit are not within the commission’s terms of reference.
Gordhan referenced the Sars commission report, in which judge Robert Nugent said he could not find any reason to believe the unit was unlawfully established.