Kate O’Regan must recuse herself, says Tom Moyane’s lawyer
Suspended South African Revenue Service (SARS) commissioner Tom Moyane wants former Constitutional Court justice Kate O’Regan to recuse herself from deciding whether he should be dismissed.
Moyane says O’Regan would not be "objective and unbiased" in evaluating the case against him.
His lawyers say O’Regan’s position as a board member of Corruption Watch‚ which has lambasted the tax boss as a treasonous criminal who belongs behind bars‚ means she cannot be tasked with presiding over the inquiry into his alleged misconduct.
"Presumably‚ as its board member, you associate yourself and are in full agreement with this and other statements made by Corruption Watch concerning Mr Moyane and the general public posture which Corruption Watch has adopted against him‚" Moyane’s lawyer, Eric Mabuza, wrote to O’Regan in a letter seen by TimesLIVE.
"Mr Moyane has accordingly instructed us to communicate his strongest objection to you presiding over his inquiry. He is of the firm view that your association with Corruption Watch has created an untenable situation for you to preside in his inquiry. He does not believe that you will be able to bring an objective and unbiased mind to the inquiry.
"Given the obvious importance of this matter‚ Mr Moyane wants nothing more than to appear before a judge who has no iota of bias against him. Regrettably‚ he does not believe that you can discharge such responsibility in the circumstances of this case," Mabuza wrote.
"In fact‚ not only is there a strong perception of bias on your part but your association with Corruption Watch also places you in a conflict of interest situation. Cumulatively‚ this makes your appointment to preside over the inquiry wholly unwarranted and undesirable."
Moyane’s lawyers further criticised O’Regan for accepting President Cyril Ramaphosa’s request that she decide whether the commissioner was guilty of the 12 misconduct charges against him.
"In fact‚ to put it bluntly‚ given the obvious and palpable perception of bias and conflict of interest on your part‚ it is rather surprising that you still accepted the appointment. It is not as if you were not aware that your long-standing association with Corruption Watch may create a ‘problem’ for you in presiding in the inquiry. The very fact that you disclosed the issue suggests that you are acutely aware of the difficulties you may face in presiding over the inquiry," Mabuza wrote.
"It is disappointing that you expected of our client, who is a lay person, to point out the unsuitability or undesirability of your appointment. The very least he expected of you as a prudent and experienced justice was to have declined the appointment from the onset or to now recuse yourself formally."
They further criticised Ramaphosa for appointing O’Regan.
Moyane’s lawyers gave O’Regan until Friday to respond to his demands that she step down as the presiding officer in his disciplinary inquiry. It’s understood that she has asked the President to submit his response to Moyane’s demand that she recuse herself by Monday.
That recusal demand comes days after Ramaphosa flatly refused to fund Moyane’s legal costs in fighting to keep his job, on the basis that "SARS has no policy authorising the legal funding of an employee in disciplinary inquiries".
In a letter written by the State Attorney‚ the President also rebuked Moyane for trying to "dictate the process to be followed" in the inquiry against him. He suggested that the commissioner, in demanding that Ramaphosa testify against him was pushing for a "process akin to a criminal trial".
Ramaphosa said it would be up to O’Regan to decide whether he should testify against Moyane.