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Tom Moyane loses bid to cross-examine Pravin Gordhan at state capture inquiry

Suspended South African Revenue Services (SARS) commissioner Tom Moyane.
Suspended South African Revenue Services (SARS) commissioner Tom Moyane.

Deputy chief justice Raymond Zondo has denied former SA Revenue Service (Sars) boss Tom Moyane leave to cross-examine public enterprises minister Pravin Gordhan at the commission of inquiry into state capture.

Zondo, who chairs the inquiry, said on Tuesday that the test for cross-examination is whether it is necessary and relevant to the commission's work. In delivering his judgment, Zondo spent most of the morning highlighting the commission's rules.

"The first requirement (for cross-examination) ... is that the statement or evidence of the witness whom he or she wishes to cross-examine implicates him or her. If he or she fails to show this, his or her application is defective," Zondo said.  

"In applying the rules as discussed above ... The first issue of [Moyane's] application is whether, as required by rule 3.3, [Moyane] has shown that he is implicated in [Gordhan’s] statement or evidence … [Moyane] has not shown that he is implicated in [Gordhan’s] statement or evidence."

It was also found that Moyane's affidavit does not adequately respond to the relevant parts of Gordhan's testimony.

"[The rule] requires a statement responding to the witness statement in so far as it implicates him or her … [Moyane's] statement does not at all respond to certain important parts of [Gordhan's] statement which implicates him or does not respond adequately to some parts of [Gordhan's] statement or evidence … Furthermore, I have also stated that rule 3.4 requires the statement of an applicant to make it clear which parts of the witness's statement is disputed or denied and the grounds on which it is disputed or denied," Zondo said.

He said Moyane did not clearly identify which parts of Gordhan's statement he disputes or denies.

"Neither in his founding affidavit or in his supplementary affidavit did [Moyane] deal with the issue on why granting him leave to appeal is necessary and in the best interests of the work of the commission," Zondo added.

In March, Moyane's lawyer Dali Mpofu, in arguing for leave to cross-examine Gordhan, alleged that the minister was racist towards Moyane and referred to a phone call in which Gordhan allegedly told Moyane to "grow up". Mpofu argued that this amounts to racism, because it implies that Moyane is a "boy". He claimed Gordhan's affidavit was "more significant for what it omits than what it says".

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