Cyril Ramaphosa hits back at Tom Moyane’s objections to his disciplinary enquiry
President Cyril Ramaphosa has hit back at suspended South African Revenue Service (SARS) commissioner Tom Moyane, describing his technical objections to the disciplinary inquiry against him as "irregular", and which "flies in the face of sound legal principle", and serves to delay the process to the "prejudice of SARS and the country".
In a stinging response to Moyane’s objections — to be heard by the chairman of the inquiry, Advocate Azhar Bham on Saturday — Ramaphosa, through his attorneys, said Moyane is effectively "sabotaging" the speedy conclusion of the disciplinary inquiry against him.
"If, as Mr Moyane has stated repeatedly in correspondence through his attorney, he seeks to clear his name as a matter or urgency, one would have expected him to answer to the substance of the allegations ... [against him].
"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," Ramaphosa’s legal team states in its heads of arguments for Moyane’s disciplinary hearing on Saturday.
Moyane, it was stated, was "sabotaging" the speedy conclusion of the process , which had "serious implications" for SARS.
In the documents, Ramaphosa’s legal team argues that the suspended SARS commissioner is not entitled to "procedural fairness" in a process in which Ramaphosa has exercised his executive power under Section 6 of the Constitution.
Ramaphosa refers to the Constitutional Court judgment brought by former National Intelligence Agency director general Billy Masetlha. In that judgment, the highest court had to determine whether the power to appoint or dismiss the head of the agency by the Presidency had to be subjected to principles of procedural fairness.
The court held that it did not, Ramaphosa’s legal team says, given that he has the power to appoint constituted executive and not administrative action. Ramaphosa adds that this does not mean there were no constitutional restraints on the exercise of his executive authority — it still had to be exercised "lawfully, rationally and in a manner consistent with the Constitution ... Procedural fairness is not a requirement".
However, despite this, Ramaphosa instituted a disciplinary inquiry against Moyane that included terms of reference, which afford him procedural fairness.
Ramaphosa says it is "trite" that, as an employee facing a disciplinary process, Moyane thinks he has the right to dictate the procedure to be followed, and that Moyane has no "entitlement" to a process akin to a criminal trial, as the suspended tax head appears to believe.