Moyane disciplinary postponement ‘fair, just and practical’ – disciplinary chair

Granting suspended SARS commissioner Tom Moyane’s application to postpone a disciplinary hearing into allegations of misconduct against him is the most practical and fair approach in light of his Constitutional Court bid to halt or stay proceedings against him.

This was the view of Advocate Azhar Bham, who is chairing Moyane’s disciplinary hearing, during his ruling on the application on Thursday.

Moyane’s legal team is hailing the ruling as a first round victory in their ConCourt bid to have the disciplinary and the Nugent Commission of Inquiry declared unlawful and invalid and to have one of the processes either halted, or permanently stayed, while the other continues.

Moyane, who was suspended by President Cyril Ramaphosa in March this year, has maintained that having both processes running at the same time was prejudicial to his rights and unfair.

He faces charges relating to his handling of a damning Financial Intelligence Centre (FIC) report into cash payments to Moyane’s second in charge at SARS Jonas Makwakwa, making unauthorised bonus payments to SARS management, misleading Parliament and instructing a SARS official not to co-operate with the KPMG investigation into the SARS High Risk Investigations Unit.

In his ConCourt papers Moyane denied the allegations stemming from the charges.

Bham heard arguments from both Advocate Dali Mpofu for Moyane and Advocate Heidi Barnes for Ramaphosa earlier in the day and concluded a postponement was the best way forward.

“In the circumstances and as regrettable as the delay actually is, in my discretion it would be fair, just and practically more desirable for me to grant a postponement of this hearing pending a decision of the Constitutional Court on the present application,” Bham said.

Barnes, for Ramaphosa, had argued for the hearing to go ahead stating that Moyane had many options available to him if he was unhappy with the outcome of the hearing.

She also submitted that Moyane had not proved that he would suffer any “incurable prejudice” if the disciplinary went ahead.

Bham disagreed, highlighting that neither the charges against Moyane or his concerns raised over the proceedings and evidence before the disciplinary so far were “frivolous”.

Bham revisited his ruling from July 31, 2018 in which he dismissed the same concerns raised by Moyane that are now before the ConCourt. Moyane brought a similar application before the Nugent Commission, which was also dismissed.

He stated that the charges against Moyane were “sufficiently serious to warrant urgent consideration”.

“It is important that those charges be tested and for so long as they are not, the uncertainty surrounding the position of the commissioner of SARS is a matter which is prejudicial not only to the president but also to the country…SARS is far too important an institution to be left in leadership limbo for longer than is necessary,” Bham said. 

“From Mr Moyane’s perspective, I have to consider that if I was to continue with proceedings now he will effectively be denied the right of ventilating the matter that is before the Constitutional Court if he is forced to deal with those very matters prior to a pronouncement by a judge.”

While Bham highlighted labour court judgments which reinforced the right of any employer to bring disciplinary action against an employee, he emphasised that the same rulings made it clear these process must be lawful and fair.

Moyane, Bham explained, has challenged the lawfulness and fairness of the proceedings in his ConCourt application.

He also took into consideration that dismissing the application for postponement would result in “undesirable” further litigation with Moyane approaching the high court to interdict the proceedings. 

If the ConCourt was to dismiss Moyane’s application he would put the parties on strict timelines to finalise the disciplinary.

Bham said that in his experience, the ConCourt would deal with matters fairly quickly – far quicker than forcing Moyane to go through the court system from the high court and up, only to reach the ConCourt again.

“From the perspective of the president, the head of our state, a speedy resolution to the matter regarding the uncertainty of the position of the commissioner of SARS is of importance. Similarly, so is the undesirably of prolonging the matter. The president has responsibilities to the country and one of them is to ensure stable leadership at the head of SARS,” Bham said.

“From Mr Moyane’s perspective it is important that his challenge in the ConCourt go both to the terms of reference which govern the manner in which I run these proceedings as well as to the admissibility of the affidavit setting out the case which Mr Moyane has to deal with. “

This is in reference to an affidavit by Public Enterprises Minister Pravin Gordhan which set out the charges against Moyane in detail. Moyane is arguing that the affidavit is inadmissible.

“I think it is preferable with the Constitutional Court case looming and pending to avoid putting the parties through further litigation…I also consider that if the ConCourt upholds the application brought by Mr Moyane, then any process embarked on now prior to that decision would have been a wasted process,” Bham said. 

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