Tom Moyane heads back to the Constitutional Court
Moyane is asking the apex court to directly hear his appeal application, bypassing the Supreme Court of Appeal
Former Sars boss Tom Moyane is not giving up in the marathon battle to get his job back.
On Thursday, Moyane filed court papers to go back to the Constitutional Court after he was dismissed in November from having direct access to the court to raise his unhappiness with processes against him.
The application for leave to appeal was against a recent high court judgment — that dismissed his attempts unceremoniously — in which he had sought to have his dismissal overturned to stop President Cyril Ramaphosa from appointing a permanent replacement and prevent retired judge Robert Nugent from releasing a final report on the state of the tax agency.
The judgment by judge Hans Fabricius opened up the way for Ramaphosa to appoint a new commissioner, which was said to be imminent. Moyane has now asked the court to directly hear the appeal application, instead of appealing first to a full bench in the high court and, after that, to petition the Supreme Court of Appeal (SCA).
As part of the reasons cited in his affidavit for not going the traditional route of appeal, Moyane argued that the matter deserved urgent and final determination; that there was only nine months left of his five-year contract; and that it involved multiple and complex constitutional issues, as well as “human dignity and ubuntu”.
The imminent appointment of his successor — who would be tasked with building the agency from the ground up and restoring crucial units, as well as its integrity — was also cited as a reason for a hearing being expedited.
Moyane was axed by Ramaphosa on November 1, after months of back and forth with the embattled former tax boss fighting the disciplinary process against him, as well as the Sars commission of inquiry to get to the bottom of a roughly R100bn hole in revenue collection over the past four years, which happened under his watch.
Ramaphosa had agreed with a recommendation by Nugent, who chaired the Sars inquiry, to fire Moyane. It was after this that Moyane asked the high court to stop Ramaphosa appointing his successor, which Fabricius dismissed with punitive costs. Fabricius found that Ramaphosa’s decision to fire Moyane was rational.
Nugent, in his final report, handed to Ramaphosa last Friday after the Fabricius judgment, did not make light of what he thought of Moyane’s actions at Sars, saying he had walked into the critical institution without integrity and dismantled it.
‘Abominable and reprehensible’
In the founding affidavit now before the Constitutional Court, Moyane’s lawyer Eric Mabuza said Fabricius, who labeled the former Sars commissioner’s conduct throughout the proceedings as “abominable” and “reprehensible”, had erred in his judgement in “many respects”. He cited, among other things, Fabricius’s interpretation of case law, as well as the tone of the judgement.
Mabuza also said the judge erred in making a finding that the only interest Moyane had in his application before the high court, was personal and financial. “The overwhelming and objective evidence” showed that Moyane was also “asserting a plethora of other legitimate rights and interests”, which included the rule of law, rationality, a right to a fair hearing and the rule against bias, he said.
Moyane did not appear in front of the Nugent commission, despite being given the opportunity to do so. Mabuza, however, said Fabricius was wrong in finding that Moyane was given an opportunity by both Nugent and Ramaphosa to be heard, “which he spurned with disdain”. Mabuza said Moyane had never refused to be heard by the president on the facts of the case, and that his refusal to appear in front of Nugent was “justifiable”, as he was still enforcing his rights to raise objections.
He also revived the issue of Michael Katz’s presence on the commission as one of Nugent’s advisers, and the relationship the tax law expert has with Ramaphosa as his personal attorney. Nugent ruled, when the issue was raised months ago at the commission, that Katz was appointed “for good reason”.