The politics of Government vs Tom Moyane

See our news report on the affidavit here:

President Cyril Ramaphosa acted on legal advice not to be the key deponent in the matter and to rather hand it over to someone intimately involved in what went on at the SA Revenue Service during the period in question, from 2016 onwards. At first, the legal team considered that since it was Ramaphosa who first engaged with SARS commissioner Tom Moyane and then later suspended him, he should have been the deponent in the case. But given the persistent sideshows that were created by Moyane’s defence, the president was advised to stay away.

Through legal exchanges since the inquiry was established, Moyane’s legal team made it apparent that they were most comfortable fighting the president in the mud. They wanted him to take the stand in the inquiry and face a trial-like string of questioning under oath. They also wanted to use the private discussions Moyane had with Ramaphosa in their initial meeting asking for his resignation to be made public. Moyane’s defence was likely going to use the financial offer of six months of his over R3 million salary to vacate office against the President in this case. Ramaphosa and his advisors saw the political consequences this would have for him and wanted to stay above the fray. For Ramaphosa, he couldn’t be seen to be at the centre of a purge of ‘Zuma-loyalists’ and – even if that may indeed be the case – he didn’t want it to appear personal.

The legal team working on the case first suggested that Treasury Director General Dondo Mogojane should lead the charge or that Treasury deputy director-general Ismail Momoniat be the key deponent. But there was one person who was intimately involved at SARS and knew the ins and outs of the misconduct that Moyane has been charged for: former finance minister and now public enterprises minister Pravin Gordhan. Mogojane and Momoniat may have known the facts surrounding the charges against Moyane but legally, their role would have been contested. In his affidavit, Gordhan notes that he had been finance minister from May 2009 until May 2014 – and again from December 2015 until 30 March 2017.

“I accordingly have personal knowledge of the facts relevant to this matter up until 30 march 2017,” his affidavit reads.

Moyane and Gordhan have been open enemies for years. A series of letters between the pair in 2016 depicted how strained the relationship was at the time – which later further deteriorated. Moyane famously complained of being treated like a “little boy” by Gordhan but the finance minister at the time hit back calling out Moyane for approving his own performance bonus – calling it unethical, immoral and illegal”. The impasse between the two escalated so quickly that Moyane turned to former president Jacob Zuma for help, accusing Gordhan of shouting at him in a “disrespectful and humiliating manner”. Later the fight escalated into Moyane laying a criminal charge against Gordhan in relation to the “rogue unit” – a case that collapsed soon after.

The push-and-pull effect between the two sides took many detours, with the Guptas and Bell Pottinger cases also getting involved in the Moyane-Gordhan showdown. Eventually, in March 2017, Moyane temporarily won the political battle as he was left untouched while Gordhan was sacked as finance minister. The problems plaguing SARS and its leadership that was first flagged by Gordhan in 2016 had worsened up until Moyane’s suspension from office this year. A glance at Gordhan’s affidavit shows this historical dissonance between them and his firmly-rooted belief that Moyane violated the law, acted unethically and brought down the once stellar institution, SARS.

As Moyane’s legal team is still mulling over the charges, there are already some early indications of their counterattack – the first of which will be based on delays in the inquiry. On June 1, Moyane’ lawyer Eric Mabuza and Presidency staff met the chairperson of the inquiry, Advocate Azhar Bham where an undertaking was made on behalf of the president that the full charges against Moyane will be served on him within a week. This was after Moyane wrote a legal letter to the President saying they want an immediate start to the process. The presidency missed that deadline and then gave a self-imposed second deadline of Wednesday, 13 June, but struggled to meet that as well. At the centre of the delay was efforts to create a water-tight case against Moyane, and be methodical in their affidavit.

Moyane’s defence is likely to interpret that as their opponents scrambling to form a case against him.

There was also an early indication from Moyane’s defence that they will not accept Ramaphosa not being the deponent in the inquiry. Their argument, it seemed, will be centred on the fact that it was the president who suspended him and it should be the president who makes the case against him. It appears they have found a strategy in insisting Ramaphosa presents the case and then answers questions - aware of the political spectacle Ramaphosa would want to avoid. While the beef between Gordhan and Moyane gives the state a solid case against Moyane, it creates room for another side show. Phrases such as a “long-standing vendetta” and “conflict of interest” are bound to find their place in the inquiry.

Up until now, Moyane’s defence has been to sidestep the actual charges he faces. Gordhan’s affidavit makes a blanket denial impossible. It’s in the detail of the events that formed the basis of the charges where the state should have a winning case. Team Moyane has been relying on auxiliary matters in their fightback and this is likely to continue. The state may be expecting Moyane to file his replying affidavit with some additional annexures to support his case and then it be left to Advocate Bham to make a ruling. It won’t be that simple. Politics almost never is. DM

Qaanitah Hunter is an EWNreporter.