Bar Council defends judge's testimony at SARS inquiry, accuses Jacques Pauw of 'personal attack'

2018-10-07 11:45

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The General Council of the Bar of South Africa on Sunday came to the defence of Retired Judge Franklyn Kroon following media reports on his testimony before the Nugent Commission on SARS.

"The GCB notes with concern certain media coverage…concerning the evidence of retired Judge Frank Kroon," said chairperson of the General Council of the Bar of South Africa, Craig Watt-Pringle SC.

"It is not the purpose of this statement to enter the fray concerning the merits or demerits of Judge Kroon's performance as chairman of the SARS Board of Inquiry."

However, he said that the GCB aimed to "correct certain factual errors and inferences". 

Furthermore, it suggested some of these were "based at least in part on an apparent failure properly to appreciate the role of the judiciary and the constraints within which judges, whether sitting in court or deployed elsewhere to chair commissions or boards of enquiry, are required to operate."

Fin24 reported last month that during his appearance at the commission, Kroon admitted that an advisory board for the SA Revenue Service of which he had been chairperson, had made a "mistake".

READ: Labelling SARS anti-corruption unit 'unlawful' was a mistake, inquiry hears

In 2015, the board had concluded that a unit investigating the illicit economy was unlawful.

According to Fin24, Kroon said that at the time, the board had relied on input from suspended SARS commissioner Tom Moyane, Advocate Muzi Sikhakhane's Report and a now withdrawn KPMG report.

READ: Kroon shuold have spoken out sooner over SARS 'rogue unit' - Van Loggerenberg

Last week, investigative journalist Jacques Pauw wrote an opinion piece for the Daily Maverick in which he suggested that Kroon had gone "rogue by making a finding that he knew was erroneous and baseless…It took the good judge more that three years to retract his mistake."

Calling Kroon's evidence "more than just a bombshell", Pauw suggested that "it was the first time ever that a judge had admitted under oath that he had made wrong findings".

READ: So who went rogue, my Kroon?

However, Watt-Pringle suggested in the GCB's statement that "the article displays a lack of appreciation for the fact that judges do not ordinarily admit to 'errors', even if they subsequently come to the realisation that they may have erred." The same applied to their involvement in boards of inquiry.

It was considered "improper to do so, as they are 'functus officio', which means they have discharged their duty", he explained.

"Chaos would ensue if judges presiding in boards of inquiry were of their own accord to supply updates of their original conclusions on the basis of new facts that enter the public domain, or a newfound realisation that they erred in their original conclusions."

Instead, appeal procedures, such as a judicial review, would deal with such cases.

As such, explained Watt-Pringle, "but for the forum of the Nugent Commission of Inquiry, it would therefore not have been open to Judge Kroon publicly to correct any errors in the findings of the board report which bears his name".

'Personal attack'

Furthermore, the GCB condemned Pauw's piece - in which Kroon is labelled a "disgrace to his profession" - as a "personal attack".

While the opinion piece referred to Kroon as a "rather undistinguished former judge from the Eastern Cape" who had served on the bench for 16 years - the GCB pointed out that Kroon had served for 28 years in various legal capacities. This included serving on the benches of the Eastern Cape and Labour Appeal Court, as well as acting as a Supreme Court of Appeal and Constitutional Court judge.

Read more on:    sars  |  sars commission of inquiry  |  state capture  |  judiciary  |  sars inquiry

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