Bham dismisses suspended SARS commissioner's complaints of unfairness

Advocate Azahr Bham SC, chairing the disciplinary committee, in his ruling on Moyane's complaint, said the suspended SARS Commissioner's disciplinary is a “matter of great importance not only to the public but also to SARS and (Moyane)” and must therefore be concluded with speed.

Moyane must now respond to charges against him by 20 August 2018, Bham ruled. If Moyane challenges Bham’s decision, he will once again delay his answering to the merits of the substantial case against him by attacking procedural points.

Reacting to the ruling, Moyane's lawyer Eric Mabuza said: “We believe the ruling of Adv Bham SC is wrong but as explained in our press conference there is nothing we can do until the President has considered both Nugent and Bham rulings alongside our objections, and if he accepts them we will be off to court. We have started drafting on the assumption that the President will accept both rulings, but we cannot go to court prematurely. This fight is about to begin. Unlike in the case of Nugent where we were not surprised this time we are extremely surprised given what transpired at the hearing. In the end justice will prevail. The arm of the law is very long.”

Ramaphosa suspended Moyane on 19 March 2018 and charged him with misconduct in violation of his duties three days after Scorpio revealed that Moyane pressured SARS officials into illegally paying at least R70-million in questionable VAT refunds to the Guptas’ Oakbay Group. Moyane was charged with gross mishandling of a Financial Intelligence Centre report in the matter of his former right hand man Jonas Makwakwa; his belligerent stance on unauthorised bonus payments to his staff that landed him in a humiliating battle with the Auditor-General; misleading parliament over the Makwakwa investigation; and instructing SARS employee Helgard Lombard not to co-operate with the KPMG investigation into the SARS High Risk Unit.

Ramaphosa referred the investigation of the VAT refunds, along with other governance issues at SARS, to the separately initiated Commission of Inquiry into SARS, chaired by retired judge Robert Nugent.

Since his suspension Moyane has on numerous occasions threatened Ramaphosa with a court challenge, but has yet to follow through. Moyane also unsuccessfully complained to the Nugent Commission about the unfairness of that procedure, arguing that he is the central subject of a Commission of Inquiry and a disciplinary hearing. Nugent rubbished his claims and, like Bham, said Moyane must take his issues up with Ramaphosa because they are not permitted by law to change the parameters of their separate investigations and procedures.

In a ruling delivered this week, Bham dismissed all Moyane’s objections against the disciplinary hearing. Moyane complained to Bham that the disciplinary procedure was “unlawful, unfair, unconstitutional and manifestly oppressive” because it “excludes oral evidence”. He said that Minister Pravin Gordhan was not empowered to depose of an affidavit setting out the substance of the charges against Moyane and that the affidavit was therefore “inadmissible or irrelevant”.

Moyane further argued that the affidavit was “vague and embarrassing”, relies on documents Gordhan should not have in his possession and that the affidavit does not explain why the President has lost confidence in Moyane.

Moyane lastly complained that the same issues at the centre of the disciplinary proceedings are also traversed by the Nugent Commission of Inquiry into SARS.

Bham dismissed Moyane’s complaint about the supposed exclusion of oral evidence, saying that only Ramaphosa could change the disciplinary hearing's terms of reference, and added that Moyane was not in any way deprived of oral evidence and cross-examination.

“This is a discretion which I will use with due regard to the power of oral evidence and cross-examination in the fair determination of facts to be tried. I can hardly, at this stage, determine the facts which will be triable until there is a substantive response by Mr Moyane (in a form I do not dictate).”

Bham continued: “The charges levelled against the Commissioner in the present case are serious… To the extent that there is a basis for these charges, this needs to be fully ventilated in order to ensure continued public confidence in the office of the Commissioner of SARS… It is in everyone's interests for such matters to be resolved as expeditiously as possible, but in a manner which is cognisant of the Commissioner's ability to fully test matters which have not only been levelled against him but which play themselves out in the public arena.”

In response to Moyane’s complaint about Gordhan deposing the affidavit, Ramaphosa’s representative Adv Heidi Barnes said Gordhan “did not usurp any authority in deposing to the affidavit – he did so as a witness setting out the evidence which will be relied upon by the President at the hearing of the charges…,” Bham explained.

Bham agreed with Barnes, saying that Ramaphosa “has chosen to rely upon Mr Gordhan as a witness” and that Gordhan, in any event, would be required to testify about the evidence in the affidavit. Bham stressed that Gordhan testified to matters relevant to the charges which are within Gordhan’s personal knowledge. In his affidavit, Gordhan says the relevant evidence was “within his custody and control when he was the Minister of Finance”.

Whether the documents ought not to have been in Gordhan’s custody, is a matter to be determined during the disciplinary hearing if Gordhan’s evidence is challenged on this basis.

Bham said he is further in no position to decide why Ramaphosa lost confidence in Moyane but must keep himself to the terms of reference in the charge sheet.

Bham criticised Ramaphosa’s legal representatives for filing the confirmatory affidavits to Gordhan’s testimony late, saying the criticism of Moyane’s lawyers “of this conduct is justified”. Bham argued that he could however not ignore the confirmatory affidavits, even though they were late.

If Moyane does not challenge Ramaphosa on any of his objections, he needs to file an affidavit in reply to Gordhan by 20 August 2018.

Moyane has since his suspension held that he is being falsely accused. When he files an affidavit, his statement will be under oath – something Moyane has steered away from doing in both the disciplinary proceedings and Commission of Inquiry. DM