Gordhan vs Moyane battle plays out in state-capture inquiry

Public enterprises minister Pravin Gordhan says axed Sars  commissioner Tom Moyane’s application to cross-examine him is not just a political attack by the EFF against him, but by extension the entire ANC, and should be refused.

“This commission is not the appropriate forum for my political detractors to air their views of my performance in government. It is of no assistance to the commission,” Gordhan said in an affidavit filed with the state-capture commission. The affidavit was made available to the media on Wednesday afternoon. 

Advocate Dali Mpofu, who is also the EFF chair, argued for Moyane at the commission on Wednesday morning, while Gordhan was represented by Michelle le Roux. Commission chair, deputy chief justice Raymond Zondo, reserved judgment on Moyane’s application. 

Gordhan  has pursued a hate speech complaint against EFF leader Julius Malema and his deputy, Floyd Shivambu after the party accused him of being "corrupt", "a dog of white monopoly capital" and hating black people, at a protest held outside the commission in 2018.

While arguing that Moyane’s application is procedurally flawed, Gordhan also alleges that it is “a poorly disguised attempt to use the commission as a political platform by Mr Moyane, through his legal representatives”.

Moyane, in turn, said in his papers that Gordhan’s accusations that he is attempting to advance a political campaign on behalf of the EFF are “laughable”. He adds it is “senseless, false and quite frankly far fetched” for Gordhan to accuse him of being used to attack the ANC “when all my life I have been either a member or supporter of the ANC”.

Gordhan hit out at  Moyane and Shivambu for trying to “resuscitate and revive” claims that he was involved in the so-called Sars rogue unit, describing it as a “desperate political ploy”. Both men have used the classified inspector-general of intelligence report into the unit to argue in separate legal matters that Gordhan may be guilty of criminal wrongdoing.

Gordham says the “status, validity and legitimacy of this report is not a matter that falls within the commission’s terms of reference and is irrelevant to its work ... The proliferation of fake intelligence reports and their use for political ends during the time in which I was the minister of finance is by now well-known to the commission”. Gordhan said. 

Moyane, however, insists that the rogue-unit matter falls directly within the terms of reference of the commission, and has urged Zondo to “call all relevant witnesses” mentioned in reports on the unit.

Redundant issue

In his testimony to the inquiry last year, Gordhan said he’d been targeted through a malicious and later aborted fraud prosecution linked to the rogue-unit allegations, emanating from charges laid by Moyane. Gordhan says the Nugent inquiry into Sars has already found that the unit was not unlawful, and therefore any questioning on that issue is redundant.

Retired judge Robert Nugent, who headed that inquiry, said that during the last four years under Moyane, the hole in revenue collection had grown to R100bn accumulatively. This shortfall, which also came amid a weakening economy, was cited as one of the reasons behind the government’s decision in 2018 to increase VAT for the first time in a quarter of a century, hitting the poorest in society hardest.

Gordhan previously testified that former president Jacob Zuma had been hell bent on appointing Moyane as SA’s tax boss, and detailed how Moyane had resisted being accountable to him.  Gordhan further gave evidence about Moyane’s alleged approval of New Integrated Credit Services (NICS) being appointed as debt collectors for Sars, which Gordhan says Moyane misled parliament about.

The commission formally notified Moyane that he was implicated by Gordhan’s testimony in terms of the NICS contract.

Gordhan now argues there is “no purpose” to the inquiry allowing Moyane to cross-examine him, other than to give a “disgruntled” Moyane “a public platform to attempt to denigrate me and my record of public service", adding in his documents that, “The application is also no more than an attempt to publicly air Mr Moyane’s racist vendetta against me.” 

He’s also used the findings of the Nugent commission, which recommended that President Cyril Ramaphosa fire Moyane for the sake of Sars and SA itself, to argue that the issues Moyane could question him about have already been decided, and cross-examination on them now is thus redundant.

Moyane, meanwhile, says he will come to the inquiry to be questioned and face cross-examination — and has a fundamental right, as someone implicated by Gordhan’s testimony, to cross-examine him.

“The right to confront and contradict your accuser is one of the most basic and fundamental tenets of fairness and justice,” Moyane argues in a reply to Gordhan. “It should hardly seek justification”.

Gordhan says the Zondo inquiry, which has a “daunting” level of work to complete and “limited public resources ... should not be further strained at Mr Moyane’s insistence to repeat the work of the Nugent commission”.

“It was his choice not to accept a multi-million-rand settlement that was offered to him and to instead embark upon a litigious campaign challenging the steps taken to remove him”.

Moyane failed to fight his November 2018 dismissal in urgent legal challenges in the high court and Constitutional Court. He is now trying to challenge its legality in non-urgent proceedings in the Pretoria High Court.