Countdown to ruling on Tom Moyane’s objections in SARS inquiry
Azhar Bham, the chairman of the disciplinary inquiry against suspended South African Revenue Service (SARS) commissioner Tom Moyane, may rule in two weeks’ time on objections to the process by the tax boss.
On Saturday, Bham heard arguments from Moyane’s counsel, advocate Dali Mpofu, on three main objections to the process initiated by President Cyril Ramaphosa after Moyane’s suspension in February.
The three main issues were the right to oral evidence or cross examination, the admissibility and content of the affidavit by former finance minister Pravin Gordhan in the disciplinary matter, and the "parallel inquiries" in which Moyane is at the centre.
Moyane wants the opportunity to cross examine witnesses against him. He wants Gordhan’s affidavit to be discarded and for Ramaphosa to halt one of the two processes under way: the disciplinary inquiry against him or the commission of inquiry into governance and administration at SARS, chaired by retired supreme court judge Robert Nugent.
Advocate Heidi Barnes, for Ramaphosa, told the televised hearing, which was open to the media, that the process unfolding against Moyane was fair, just and one that did not entitle him to oral evidence. Barnes added that in any case, the terms of reference did not exclude oral evidence, but this was at the discretion of the presiding officer.
Mpofu described Gordhan’s affidavit as unfair and biased, based on hostility and on Gordhan, SARS commissioner from 1999 to 2009, wanting to "rule from the grave". It was "not worth the paper it’s written on". He said it was akin to the water affairs minister dealing with an issue around diplomats, which does not fall under the authority of her department. Gordhan is minister of public enterprises.
Moyane wants Bham to discard Gordhan’s affidavit. He also asked Bham to disregard five confirmatory affidavits of Gordhan’s evidence, saying they were filed late.
The affidavits are by Helgard Lombard, a SARS staffer whom Moyane allegedly told 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, acting SARS commissioner Mark Kingon, Treasury director-general Dondo Mogajane and acting SARS head of procurement Cassandra Ngubo.
Barnes said the argument against Gordhan’s evidence was "bewildering". She said Gordhan did not need authority to depose to the affidavit as a witness. She accused Mpofu of confusing the authority needed to institute proceedings and that required to give evidence. Barnes said the giving of evidence was a separate matter in which authority was not required for a witness. She said Mpofu had provided no evidence as to why Gordhan’s affidavit should be struck out or deemed inadmissible.
Barnes conceded that the five confirmatory affidavits were filed late, but said Moyane had not been prejudiced by that.
On the parallel processes, Barnes said Bham did not have the authority to order one or both processes be halted, as they were instituted by the president. Besides, Mpofu had not shown how their running simultaneously was unfair to Moyane.
The "origin and purposes" of the two processes were "entirely different" and the fact that Moyane had a role to play in each process did not indicate how it was unfair to him.
Barnes said the commission of inquiry under Nugent was "inquisitorial" and could not charge or make findings of guilt against anyone. The disciplinary inquiry was "adversarial".