Natasha Marrian Political editor: Business Day
Suspended: South African Revenue Service commissioner Tom Moyane is just one part of a much bigger credibility gap the ANC government is facing. Picture: TREVOR SAMSON
Suspended: South African Revenue Service commissioner Tom Moyane is just one part of a much bigger credibility gap the ANC government is facing. Picture: TREVOR SAMSON

The first round in the bout between suspended South African Revenue Service (SARS) commissioner Tom Moyane and President Cyril Ramaphosa kicks off on Saturday.

The stage has been set for a bruising tussle in the hearing before disciplinary inquiry chairman Azhar Bham SC.

Moyane has objected to the disciplinary inquiry against him being conducted in writing and to former finance minister Pravin Gordhan, now public enterprises minister, deposing an affidavit as a witness in the matter. Moyane has objected to the running of a separate commission of inquiry into governance and administration at SARS in parallel to the disciplinary process, arguing this amounted to "double jeopardy".

In return, Ramaphosa labelled Moyane’s objections as "irregular", saying they flew "in the face of sound legal principle".

Moyane and Ramaphosa have for months exchanged correspondence over the process, with threats by the former to take the president to court at almost every step.

First open confrontation

Saturday will mark the first open confrontation between attorneys representing the pair.

Ramaphosa, through his attorneys, said Moyane was 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 of 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 stated in its heads of arguments for Moyane’s disciplinary hearing on Saturday.

Ramaphosa gave the strongest indication yet, through his lawyers, that he was unwilling to halt the key commission of inquiry into governance and tax administration at SARS, chaired by retired judge Robert Nugent. His legal team said the Nugent inquiry was not at all about Moyane and had a vastly different mandate to the disciplinary process.

"The fact that they are in existence at the same time and the fact that Mr Moyane has a role to play in both processes does not give rise to any unfairness," the papers read.

The president’s legal team has also rubbished Moyane’s objection to Gordhan’s affidavit.

Moyane wants Gordhan’s evidence completely scrapped from proceedings. His attorneys argued that Gordhan had taken over powers not entitled to him by law and suggested that it should be Finance Minister Nhlanhla Nene who provided the evidence.

Moyane’s team argued that Nene had "passed the buck".

Ramaphosa’s lawyers, however, disagreed, saying Gordhan had personal knowledge of the events under question — he was finance minister at the time. They argued that five further witnesses have filed affidavits confirming Gordhan’s evidence.

These include Helgard Lombard, a SARS staffer who Moyane instructed to feign illness when he was required for an interview with KPMG over the alleged rogue unit. Other confirmatory affidavits are from former Financial Intelligence Centre director Murray Michell, Treasury director-general Dondo Mogajane, acting SARS commissioner Mark Kingon and acting SARS head of procurement Cassandra Ngubo.

Ramaphosa’s team dismissed the argument that the process should not be held in writing, saying that the Labour Court had repeatedly held that a pre-dismissal hearing may not be held orally for it to be fair.

Ramaphosa’s legal team argues that Moyane is not entitled to "procedural fairness" in a process in which Ramaphosa has exercised his executive power under section 6 of the Constitution.

marriann@businesslive.co.za