Serjeant at the Bar

Little that can aid Moyane's desperate attempts to save his job

2018-11-30 08:53
Tom Moyane, former commissioner of SARS. Photo: Elvira Wood

Tom Moyane, former commissioner of SARS. Photo: Elvira Wood

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It is difficult to understand an argument to the effect that President Cyril Ramaphosa did not act rationally when he fired Tom Moyane. The evidence produced to date concerning the demise of SARS under Moyane is truly damning, writes Serjeant at the Bar.

Surprise and shock! Former president Jacob Zuma has joined forces with his old buddy Tom Moyane in the latter's increasingly desperate attempt to regain his position as commissioner of the South African Revenue Service (SARS).

Zuma has deposed a supporting affidavit in which he says that the institution of a commission of inquiry into SARS was decided when he was the president. He further states that the terms of reference that were ultimately promulgated by President Cyril Ramaphosa to constitute the Nugent commission deviated from "its originally intended purpose".

Zuma goes on to say that "at all material times hereto President Ramaphosa diligently served as my Deputy President and he would have been familiar with the most important and relevant decisions made by Cabinet and/or the Presidency".

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It is easy to grasp the political reasoning behind this affidavit – it serves to remind the reader that Ramaphosa was a full participant in all decisions and appointments made by Zuma and hence should be equally responsible therefor. But beyond the politics of trying to throw Ramaphosa under the political bus, there is little which can aid Moyane in his attempt to prevent his removal from the office of commissioner.

The president is legally entitled to establish a commission of inquiry. There are constraints on his power as was made clear in President of RSA v SARFU, the most important of which is that he must act within the bounds of legality and in good faith. Legality in this context surely means that he is obliged to act in a rational manner.

As has been argued by many legal commentators including in this column, it is difficult to understand an argument to the effect that Ramaphosa did not act rationally when he fired Moyane. The evidence produced to date concerning the demise of SARS under Moyane is truly damning. It in significant part explains the shortfalls from the budgeted revenue that occurred in three successive tax years.

Why, it may be asked rhetorically, can it be justifiably contended that it is irrational for the president to say: "I am removing you as Commissioner as I need someone who can turn this critical institution around and thus meet budget or come close thereto."

The only argument that Moyane's legal representatives could plausibly employ is to argue that, as the president relied for the reasons he gave for his decision on the interim report of the Nugent commission, his decision is potentially flawed. In other words, as Moyane approached the Constitutional Court to set aside the Nugent commission, its work cannot be relied upon by the president until the Constitutional Court dismisses the Moyane application.

Unsurprisingly the Constitutional Court dismissed Moyane's attempt for direct access. However, in seeking an interdict to prevent his dismissal Moyane would have to argue, not that he has a prima facie right to have the Nugent commission overturned, but rather that he possesses a prima facie right to reinstatement, or at the least, suspension on full pay until the appointed inquiry concerning his dismissal led by Adv Bham SC has completed its work.

In turn, he would have to persuade a court that the president acted irrationally in firing him, notwithstanding the evidence available concerning the shambles that SARS had become under his leadership. And that leaves aside the further argument that Moyane has an alternative form of relief in that he can still sue for damages, which would in the main be made up of the remuneration for the balance of his contract.

The litigation that follows will therefore pose a number of legal challenges. But the strict legal outcomes aside, it is surely of the utmost importance that SARS be resurrected to its once formidable self.

The past three years have been a disaster for the country – major shortfalls in revenue collection have meant far less revenue available for critical infrastructure and assistance to millions of economically vulnerable South Africans. It also made a VAT increase inevitable and that in turn placed further pressure on the vulnerable.

To defend Moyane is to ignore all of these consequences. It may not be surprising that Zuma thinks otherwise but beyond him and his supporters, the idea that major and instant change is required at SARS, the good work that has been done at the institution in the interim notwithstanding, is surely beyond question.

The imperative is thus for this saga relating to Moyane to reach its merciful end and for SARS to again ensure that all tax due is collected without fear or favour and in the efficient manner that occurred in the heyday of the institution.

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  |  cyril rama­phosa  |  tom moyane  |  jacob zuma  |  constitutional court
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