Ramaphosa lawyers accuse Moyane of ‘effectively sabotaging’ his own misconduct hearing

Suspended SARS commissioner Tom Moyane.
Suspended SARS commissioner Tom Moyane.
Image: FREDDY MAVUNDA

President Cyril Ramaphosa’s lawyers have accused suspended tax boss Tom Moyane of “effectively sabotaging” the speedy conclusion of the misconduct inquiry against him by using “technical points” as a basis to not answer to the charges against him.

They further accuse Moyane of making submissions “littered with sarcastic‚ insulting and disparaging comment” - aimed only at delaying the hearing against him from proceeding.

Moyane‚ in turn‚ argues that the inquiry against him is being conducted in an “unlawful‚ unfair‚ unconstitutional and manifestly oppressive” way. He maintains he can only answer to the case against him when these objections are resolved.

But that’s not how Ramaphosa’s lawyers see it.

“If‚ as Mr Moyane has stated repeatedly in correspondence through his attorney‚ he seeks to clear his name as a matter of urgency‚ one would have expected him to have answered to the substance of the allegations contained in the affidavit” Ramaphosa’s lawyers argue in heads of argument submitted prior to the first hearing of Moyane’s misconduct inquiry‚ taking place on Saturday.

“Instead‚ Mr Moyane seeks to turn sound disciplinary procedure on its head by refusing to answer to the substance of the allegations against him until his technical points have been determined. In so doing‚ Mr Moyane is effectively sabotaging the speedy conclusion of his disciplinary inquiry.”

Lawyers for the Presidency have also sought to challenge Moyane’s argument that there is no real case against him‚ and revealed the names of five other witnesses who will provide evidence to his misconduct inquiry.

These witnesses include Helgaard Lombard‚ the SARS employee who Moyane stands accused of instructing “to feign illness in order to avoid attending an interview scheduled with KPMG pursuant to its investigation into the SARS High Risk Investigative Unit”.

Moyane is also facing charges in relation to his alleged failure to take action against his former second-in-command Jonas Makwakwa‚ who was red-flagged by the Financial Intelligence Centre over allegedly suspicious cash transactions‚ and his alleged dishonesty to Parliament.

Ramaphosa’s lawyers have accused the former commissioner of trying to set the terms for his own disciplinary inquiry.

“It is trite that as an employee facing charges in an internal disciplinary inquiry‚ Mr Moyane has no right to dictate the procedure to be followed. Also trite‚ is that Mr Moyane has no entitlement to a process akin to a criminal trial‚ as he appears to believe‚” Ramaphosa’s lawyers argue.

They were responding to several objections raised by Moyane to the operation of the misconduct inquiry against him. Those objections will be aired at the first public sitting of the Moyane inquiry on Saturday.

Moyane’s objections to the inquiry include his argument that it is “unlawful‚ unfair‚ unconstitutional and manifestly oppressive in that it automatically excludes oral evidence”.

Moyane has made it clear that he wants Ramaphosa to testify against him‚ and doesn’t want the case against him decided on documentary evidence.

The President’s lawyers‚ however‚ say this argument is founded on an incorrect understanding of the law.

They further argue that: “While Mr Moyane has not and cannot demonstrate a legal entitlement thereto‚ the bitter irony is that neither the Terms of Reference nor the Charge Sheet in fact exclude oral evidence as is contended on Mr Moyane’s behalf.”

They argue that‚ should there be significant disputes in the written evidence provided to the Moyane inquiry‚ these issues can be resolved by calling for witness testimony‚ and cross examination.

Moyane has also objected to the fact that the case against him has been made by Public Enterprises Minister Pravin Gordhan‚ the former Minister of Finance. Moyane says Gordhan was not authorised to give this evidence and wants to be thrown out.

He maintains that Gordhan’s evidence - on behalf of Ramaphosa - was unlawfully given.

“The unlawfulness attaches equally to Minister Gordhan‚ who usurped powers not conferred upon him in law‚ Minister Nene‚ who has abdicated his powers and President Ramaphosa‚ who has passed the buck. This is a textbook case of the improper exercise and non-exercise of executive authority conferred by Parliament in statute and the Constitution.”

He further argues that Gordhan’s evidence is “is vague and embarrassing in that it lacks the necessary averments to link it in any manner to the central issue of the alleged loss of confidence in the Commissioner by the President of the Republic of South Africa”.

Ramaphosa’s lawyers say these arguments have no substance.

“Mr Gordhan’s affidavit does not institute the disciplinary proceedings. It sets out facts‚ of which Mr Gordhan (overwhelmingly) has personal knowledge‚ in substantiation of the charges against Mr Moyane.

“Mr Gordhan’s knowledge of the facts relevant to the misconduct charges against Mr Moyane therefore arises from his personal knowledge and from his knowledge of documents and correspondence pertaining to the matter which were within his custody and control at the relevant time.”

Moyane has again argued‚ as he did before Judge Robert Nugent‚ that the Nugent inquiry into tax governance is‚ essentially‚ an inquiry into him. He insists that this is deeply unfair and nonsensical.

The President’s lawyers say this argument is also unfounded.

“Neither the raison d’etre of the Commission of Inquiry nor the matters to be enquired into are directed at Mr Moyane personally. Instead the goal of the Commission of Inquiry is to investigate and make recommendations to remedy deficiencies that have beset SARS as an institution.

“Indeed‚ when the Commission of Inquiry was proposed by Minister Gigaba in 2017‚ Mr Moyane expressed his support for it and indicated his willingness to co-operate.

“The disciplinary inquiry is‚ by contrast‚ directed at Mr Moyane personally. Mr Moyane is charged with having committed misconduct in violation of his duties and responsibilities as Commissioner of SARS in terms of the SARS Act‚ the Public Finance Management Act 1 of 1999 (“the PFMA”) the SARS Code of Conduct‚ his fiduciary duties and his duty to act in accordance with the prescripts of section 195 of the Constitution in a number of specific respects‚” they say.

 

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