Firing Sars boss Tom Moyane was an executive decision, court hears
A loss of confidence by President Cyril Ramaphosa in axed SA Revenue Service (Sars) boss Tom Moyane was enough to exercise his executive power to fire him, provided it was rational.
This was at the heart of Ramaphosa’s case before the High Court in Pretoria on Tuesday, where arguments were heard in Moyane’s bid to get his job back.
Moyane’s counsel, advocate Dali Mpofu, told the court the embattled tax boss wants to be reinstated to his post, but remain on suspension so that he can “face the music”.
Mpofu indicated that Moyane does not want to “go back to his desk”, but is happy to remain on suspension and face the disciplinary inquiry against him.
This is after Moyane has spent the last nine months avoiding answering directly to any allegation put to him by either the disciplinary process or in the Sars commission of inquiry chaired by retired judge Robert Nugent. Nugent recommended Moyane’s axing in an interim report to Ramaphosa, saying it is imperative that he appoint a permanent commissioner to begin the renewal at Sars.
The Nugent inquiry was investigating governance issues at the tax agency, which has been mired in allegations of mismanagement that deprived the fiscus of billions of rand that could have been used to fund key services such as health and education. Sars has had a shortfall of about R100bn since Moyane took over in 2014.
Mpofu said there will be no “inconvenience” to Ramaphosa if he were to reinstate Moyane to his post.
Advocate Kameshni Pillay, for Ramaphosa, argued that reinstating Moyane would be depriving the president of exercising his executive power — the appointment and, by extension, the removal of the Sars commissioner is at the discretion of the president.
Judge Hans Fabricius asked whether it was “good enough” for Ramaphosa to contemplate the matter for an hour or so, even in the absence of a report, to determine that he had lost confidence in Moyane, to which Pillay replied “yes”.
She said Moyane also wanted to prevent the Nugent inquiry from performing its legal function and fulfill its terms of reference. Moyane had furthermore asked the court to block Nugent from handing his final report to Ramaphosa.
Pillay told the court that Moyane has not demonstrated that he was treated unfairly. She said Ramaphosa had offered him an opportunity to rebut the evidence in Nugent’s interim report, which recommended Moyane’s axing.
Advocate Wim Trengove, representing Nugent, told the court that the president’s power to remove Moyane is not derived or sustained by any “contract”, rather it is a “public power” that is “constrained only” by rationality. The president’s power is “executive” and not “administrative” action.
Trengove said that from the beginning of Nugent’s work, Moyane displayed an attitude of “vilification and invective” towards the retired judge.
To illustrate “rationality”, what Trengove described as the “heart” of the case, he read out extracts from Nugent’s interim report. The report reads that under Moyane, Sars reeked of “intrigue, fear, distrust and suspicion”. The operating model had been restructured, displacing 200 senior employees and compromising measures to counter criminality, meaning those who traded in illicit commodities such as tobacco operated with “little constraint”, it reads.
Judge Fabricius said he will hand down judgment before December 14, which is the deadline for Nugent to submit his final report to Ramaphosa.