SARS Inquiry's Judge Nugent to rule on Moyane's objections

Retired Supreme Court of Appeals Judge Robert Nugent is heading the SARS inquiry.
Retired Supreme Court of Appeals Judge Robert Nugent is heading the SARS inquiry.
Image: Simphiwe Nkwali / Sunday Times

Judge Robert Nugent will on Monday rule on a series of objections raised by suspended tax boss Tom Moyane about the “gross unfairness” and “inherent bias” of his inquiry into tax administration and governance.

After hours of submissions – and a sometimes heated interaction between Nugent and Moyane’s counsel Dali Mpofu – Nugent conceded that Moyane had raised two fair concerns that he would address in a ruling on Monday afternoon.

The whole enterprise is just an unmitigated sham and a farce
Dali Mpofu 

These concerns relate‚ firstly‚ to Moyane’s argument that the Nugent Inquiry is focusing on allegations related to his term as Sars commissioner‚ and may prejudice him when he faces misconduct charges in another separate inquiry.

Essentially‚ Mpofu argued‚ these two inquiries violated the principle of “double jeopardy”.

“Double jeopardy is also a time-tested principle of fairness and justice‚ according to which‚ once found not guilty or liable in one set of proceedings‚ a person may not be subjected to a process to determine the same liability‚” Mpofu said.

“The overlaps between the two inquiries are self-evident. It is indeed so that in addition‚ one of the two reasons originally cited by the president for his alleged loss of confidence‚ namely the VAT refunds‚ miraculously did not appear on the charge sheet‚ only to resurface in this commission. The inference of an unlawfully orchestrated double-barrelled attack on the commissioner is‚ in the circumstances‚ irresistible.

“The whole enterprise is just an unmitigated sham and a farce.”

Moyane has asked that the Nugent inquiry be discontinued or stayed‚ pending the outcome of his disciplinary inquiry and “that all the evidence of the past three days be expunged from the record‚ as it was obtained under a huge cloud of unlawfulness and procedural unfairness”.

Judge Nugent hit back at Mpofu’s suggestion that his inquiry had shown deliberate bias by not inviting Moyane to give evidence‚ responding that he had never before been called “a kangaroo court”.

Although admitting that his evidence leaders had not consulted with Moyane as they had with other witnesses‚ he denied suggestions that this was part of a deliberate strategy against Moyane.

“I have not invited any witnesses‚” he said‚ adding that the witnesses approached by the evidence leaders so far had been asked to speak about why they had left Sars – a question raised in his inquiry’s terms of reference.

Nugent later stated that he was inviting Moyane to meet with himself or his evidence leaders about any issues that he wanted addressed. While he would compel Moyane to testify‚ the judge said‚ he would welcome his testimony to the inquiry.

Judge Nugent did however admit that he was concerned about Moyane’s “double jeopardy” submission. He’d earlier told Mpofu: ““I don’t know why there are two separate tribunals‚ and I’m not interested… I have accepted the proclamation that I must do this work and do it by November“.

Following a tea break‚ however‚ he seemingly changed this stance.

The judge had also initially sought to argue that there was nothing he could do about Moyane’s objection that professor Michael Katz was assisting him with the Sars inquiry. Katz – a renowned tax expert – has been described as Ramaphosa’s “personal legal advisor” by Mpofu.

Mpofu further claims that Katz is representing Ramaphosa in a law suit bought against him by Marikana victims. This amounts to a clear conflict of interest‚ he says.

“The test is of course not actual bias but a reasonable apprehension or suspicion thereof on the part of a potentially prejudiced party such as commissioner Moyane. The president could surely [not] have appointed a person who is well-known to be his personal lawyer so as to sustain a semblance of neutrality or impartiality. Alternatively‚ the president could have conducted or appointed an internal inquiry.”

Mpofu stressed that Moyane was not seeking to attack Katz on the basis of his competency‚ but rather his perception that he was conflicted because of his relationship with Ramaphosa.

Judge Nugent said he accepted this argument‚ after earlier stating that Katz’s appointment was made by Ramaphosa and had nothing to do with him.

His formal ruling on Moyane’s objections – which Mpofu has already suggested may lead to further legal action – will be delivered on Monday.

The inquiry into the South African Reserve Bank kicked off on June 26 2018. Suspended SARS boss Tom Moyane is accused of costing SARS, and South Africa, at least R142-billion.

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