Tom Moyane wins crucial battle against presidency
Inquiry chair Azhar Bham found in favour of arguments to postpone or permanently stay the disciplinary proceedings pending the outcome of the Constitutional Court matter
Tom Moyane has delivered the first blow to the presidency in his disciplinary inquiry‚ forcing proceedings to be postponed pending the outcome of a Constitutional Court application on the legality of the hearing.
The suspended SA Revenue Services (Sars) commissioner came out triumphant on Thursday when advocate Azhar Bham — who chairs the inquiry — found in favour of arguments to postpone or permanently stay the disciplinary proceedings pending the outcome of the Constitutional Court matter.
In September‚ Moyane’s lawyer‚ Eric Mabuza‚ filed an application to the court objecting to the disciplinary hearing and retired judge Robert Nugent's commission of inquiry into Sars being conducted at the same time.
In written representations to Bham on Thursday‚ Moyane’s legal counsel‚ headed by advocate Dali Mpofu‚ asked that the possible effect of the outcome of the court application on the evidence before the disciplinary inquiry be considered.
Bham was also asked to consider the need to avoid fruitless and wasteful expenditure on both sides‚ as well as the consequences or potential prejudice of not granting a postponement.
Opposing the request‚ the presidency’s legal counsel‚ headed by advocate Heidi Barnes‚ argued that Moyane’s Constitutional Court application was “bad in law for a whole host of reasons”.
The presidency argued that the application had no effect on the disciplinary inquiry.
“Granting a stay of the disciplinary inquiry would amount to barring the employer for an indeterminate but considerable period of time from exercising its right and prerogative to discipline Moyane on charges of extremely serious misconduct‚” the argument states.
The arguments clearly left Bham with a lot to consider: he took a five-minute break to decide how long he would need to ponder the arguments and then went into recess for one-and-a-half hours before announcing his decision.
Delivering the judgment‚ Bham said he needed to weigh up the urgency of finalising disciplinary processes against Moyane with Moyane's right to a fair and equal process. He said if the court dismissed Moyane's application‚ he would put both parties on a tight timeline — and if it upheld the application‚ it would render any progress on the disciplinary inquiry a waste.
Bham‚ therefore‚ postponed the hearing pending the outcome of Moyane's present application to the Constitutional Court. It is unclear when the matter will be heard.
In the meanwhile‚ Nugent’s commission of inquiry is expected to continue on October 15.