Serjeant at the Bar

It's the end of road for Tom Moyane. So why does he think it's not?

2019-02-15 09:28
UNDER FIRE Sars commissioner Tom Moyane. Picture: Deon Raath

UNDER FIRE Sars commissioner Tom Moyane. Picture: Deon Raath

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There really is no plausible legal path for Tom Moyane to continue litigation, although one suspects that will not deter him, writes Sergeant at the Bar.

If the findings of the Nugent commission are accepted, it may be brought to bear that Tom Moyane played a huge role in the degradation of SARS and hence the increased pressure on the public purse due to declining tax collection.

In turn this decline has greatly affected the poor by causing an increase last year in VAT and ensuring less money for critical forms of state investment.  

But he is a determined man and even a loss at the Constitutional Court has failed to derail his continuing litigation strategy.  

READ: Moyane: We accept that this is the end of the road - for now

The question to be addressed is: what is the aim of this litigation after the Constitutional Court dismissed Moyane's bid to get his job back? To answer this question it is necessary to go back to a judgment of Judge Hans Fabricius on 11 December last year.

Moyane approached the high court to prevent the president from implementing recommendations contained in an interim report of the Nugent commission, the relief of which included the reinstatement of Moyane as commissioner, albeit that he remains suspended with pay, the prevention of an appointment by the president of a new commissioner and the prohibition of any further reports being issued by the Nugent commission.  

There followed a second part of the relief sought which included the suspension of the Nugent commission, and a declaration that the decision by the president based upon the Nugent commission to fire Moyane was legally invalid.  

Judge Fabricius was only required to deal with the first part of the relief. In dismissing the application in respect of the interim relief sought in the first part, Fabricius found that the president was legally entitled to dismiss a commissioner provided he conducted himself within the confines of legality. Procedural fairness was not a requirement in such a case.

In this case the judge held that not only was the president entitled to have regard to the interim report of the Nugent commission but he was "indeed obliged to do so… indeed the president would have been acting irrationally, if he had not acted on the interim report (of Judge Nugent)".  

In addition the court held that Moyane cannot demonstrate a right of reinstatement particularly in a case such as this one where a special relationship of trust must exist between the president and the commissioner. It was against this order that Moyane appealed to the Constitutional Court which, in dismissing his appeal, held that there were no prospects of success.

It is trite that the appeal is against an order and not the reasoning employed by the court. So Judge Fabricius' reasoning may not have been what motivated the Constitutional Court to find that there were no prospects that Moyane could legally prevent the president from firing him and appointing a successor.  

ALSO READ: Trevor Manuel heads up search for new SARS boss

Moyane now contends that the second part of the relief initially sought by him was not determined by Judge Fabricius and hence the decision of the Constitutional Court to hear the appeal was only confined to the order so granted. In other words, it is still open to Moyane to argue that the Nugent commission which by now has handed in its final report should be suspended and that its rulings should be set aside.  

There is further relief sought that Minister Pravin Gordhan should not be involved in the Nugent commission, presumably in respect of being a witness at the commission and the appointment of advocate Azhar Bham SC to chair an inquiry into the status of Moyane. Both these latter forms of relief have clearly been overtaken by events.  

But so it would appear has the relief against the Nugent commission. At best for Moyane he could raise arguments about the commission's composition but given that the final report has been delivered, it is difficult to see what live legal issues remain.  

The only plausible basis for relief would be that the president made his decision to remove Moyane as a result of the interim report written by Judge Nugent and hence acted irrationally. But that was the real aim of the relief that Judge Fabricius dismissed and it was in respect of that order that the Constitutional Court held there were no prospect of success.  

There is the added consideration that Moyane's term of office was due to end in September 2019. As there is no legal basis to argue that he was entitled to another term, his only possible remedy is to sue for damages in respect of benefits until the end of his term.  

In summary there really is no plausible legal path for Moyane, although one suspects that will not deter him. Interestingly, not even the punitive cost order against him in the North Gauteng High Court case has deterred him.  

Nonetheless, a new commissioner may be installed soon and save for actions which some NGOs have sought against Moyane, he may not be seen litigating for much longer.   

- Serjeant at the Bar is a senior legal practitioner with a special interest in constitutional law.

Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24.

Read more on:    sars  |  tom moyane  |  nugent commision
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