READ IN FULL: Moyane's letter to Ramaphosa over 'unlawful' suspension
'It is indisputable that the process adopted by you is unlawful and unconstitutional'
This is the full text of a letter by SARS Commissioner, Tom Moyane, to president Cyril Ramaphosa in response to his suspension:
Mr Cyril Ramaphosa
Honourable President of South Africa
Dear Honourable President
1. I refer to the above matter and in particular our meeting held on 18 March 2018 at your residence. In the said meeting, you offered me an opportunity to resign with immediate effect wherein you offered me mutual separation payment or the hard-route which I interpreted as dismissal as the Commissioner for the SARS with immediate effect. The basis of your decision was solely based on your allegation that I have mishandled the Makwakwa matter and that I took an unreasonable amount of time before acting against Mr Makwakwa. However, I was shocked by your premise because Parliament is currently seized with this matter and it seems to me that you have developed your view without being in possession of all the necessary documents such as all the relevant correspondence, investigation reports and outcomes of disciplinary proceedings against Makwakwa. Further, it was obvious to me that you showed little interest in my version of events in respect of the Makwakwa matter, and a matter of fact you failed to offer me an opportunity to submit my version of events.
2. Further, the Honourable President made it clear to me that you were worried about media reports surrounding a certain taxpayer’s VAT refund. In response, I clearly explained to you that I had no role to play in this matter except to make follow ups about whether the SARS’ senior officials seized with this matter have assisted the taxpayer about the VAT refund as required by the law and within the SARS internal operational policies.
3. It is common cause that I declined the option of resignation and thereafter you indicated that you shall proceed to effect the dismissal. With regard to the dismissal, you have advised that your office shall communicate same during the course of today. To my surprise, you intended to proceed with the dismissal notwithstanding that there is no evidence of an irretrievable breakdown of trust between the President and the Commissioner of the SARS.
4. It was glaring that you have already made a decision to dismiss me. Further, there have been media reports that you have made a decision to install new leadership at the helm of the SARS and that Mr Pravin Gordhan is reported as the source of such reports. In this regard, SARS has received a plethora of media queries to the effect that you have already dismissed me and have already appointed another Commissioner for the SARS namely Mr Mcebisi Jonas. Further you stated that your intended purpose is to clean the SARS and that you have lost confidence in me as the Commissioner of SARS.
5. I have been advised that as the President, you have the power to appoint the Commissioner for the SARS as contemplated in section 6 of the SARS Act 34 of 1997 (as amended) and that such power includes the power to dismiss. In the same token, I have been advised that the process of either suspension or dismissal must be both procedurally and substantively fair as required by the legislative regime governing employment relations. In this regard, I was specifically advised that you need to afford me an opportunity to be heard in order for me to dissuade you from taking the decision of suspension or dismissal.
6. It is indisputable that the process adopted by you is unlawful and unconstitutional in that you have made a decision to dismiss or suspend without affording me an opportunity to be heard. Further, it is clear to me that you decision is largely based on media reports or informed by people with a bias view, and your decision was made without applying your mind to the necessary information in respect of both the Makwakwa matter and the taxpayer’s VAT refund.
7. I am advised that you conduct invites urgent legal review and would obviously be overturned by the Courts. In this regard, I intend to approach the court to institute an urgent interdict if you fail to adhere to the required undertaking as stated hereunder.
8. In light of the unlawful process adopted by you, I hereby seek an undertaking from you that you shall not proceed to either suspend or dismiss me without following due process which includes affording me an opportunity to be heard and present my version through an independent and objective hearing. The President has already made his mind and thus he is conflicted and perceived as such. For instance, I am advised that the President is required to either request Parliament to hold an inquiry into my fitness to hold office or a hearing chaired by an independent person or alternatively to await the outcomes of the intended commission of inquiry. I hereby urge the President to urgently establish the intended commission of inquiry and thereafter the President could make a decision based on the outcome of the said commission.
9. I hereby request that the required undertaking be make today on or before 9.30pm. Failure to give the undertaking will leave me with no alternative but to approach the court seeking an interdict on an urgent basis. I intend to approach the court by tomorrow morning.
Date: 19 March 2018