/ 18 April 2019

Moyane is fast running out of options

Tom Moyane
Former Sars commissioner, Tom Moyane. (Esa Alexander/The Times)

On Tuesday, Deputy Chief Justice Raymond Zondo denied former South African Revenue Service (Sars) commissioner Tom Moyane the right to cross-examine Public Enterprises Minister Pravin Gordhan.

Moyane has spectacularly lost every legal battle against the Sars commission, his disciplinary hearing and his axing.

While at the helm of Sars, Moyane mimicked former president Jacob Zuma in evading accountability.

Throughout his disciplinary inquiry, chaired by advocate Azhar Bham, as well as the Nugent commission of inquiry into tax administration and governance at Sars, Moyane did not once rebut allegations made against him by more than 50 senior Sars staff members.

Instead, he cried conspiracy, hatred and procedural unfairness — the latter despite being given ample opportunity to respond to Nugent, which he chose not to do.

Moyane did not explain why he and Boston-based consultancy Bain & Company had begun “restructuring” Sars before he was appointed commissioner, and why contracts with Bain and information technology company Gartner, with its links to his friend Patrick Monyeki, were awarded unlawfully — a finding by the Sars commission.

Nor has he explained his inaction in relation to his second-in-charge, Jonas Makwakwa, who has also not answered to money-laundering allegations in relation to the R1.2-million deposited into his personal bank account and that of his partner, Kelly-Ann Elskie.

As an aside, the Hawks concluded their investigation into the Makwakwa matter in November and handed it over to the National Prosecuting Authority. Six months later and nearly three years after the damning allegations surfacing, there is little clarity on whether Makwakwa will ever explain the bulk cash deposits into his bank account.

Moyane sought to have his pet project ventilated in the state capture commission of inquiry before Zondo on the discredited “rogue unit” narrative. It’s a narrative that has relentlessly been used against Gordhan by his political opponents ever since the allegations first emerged in the Sunday Times in 2014. The newspaper later retracted the story.

The unit was, and still is — as a result of Moyane and the Economic Freedom Fighters (EFF) pushing it — the subject of a number of investigations, commissions of inquiry and task teams.

The Sikhakhane Report, a report commissioned by Sars, continues to be at the heart of the “rogue unit” allegations. Advocate Muzi Sikhakhane SC is currently Zuma’s attorney.

The findings of a report by KPMG on the unit, commissioned by Sars, were retracted by the audit firm, which reimbursed Sars the R23-million it was paid for the work.

The “documentary review” of the Sikhakhane report by a treasury-appointed advisory board headed by retired judge Frank Kroon was also discredited when Kroon himself did an about-turn on his initial finding of the illegality of the unit before the Nugent commission last year.

The Nugent commission also heard that Moyane got legal opinion from advocate Wim Trengove SC, indicating that the unit was not unlawful — legal opinion which he ignored.

Nugent also found that although there could have been individuals who had gone rogue in the unit, its establishment — which Gordhan was responsible for — was not unlawful.

Next week, Gordhan is due to respond to a subpoena by public protector Busisiwe Mkhwebane over the establishment of the unit.

Should the “rogue unit” narrative be openly aired and dispensed with, it will be fascinating to see what new stick Moyane finds to beat Gordhan with.

He will find one, with a little help from his new-found allies, the EFF.