Suspended SA Revenue Service (SARS) Commissioner Tom Moyane has given President Cyril Ramaphosa until November 9, 2018 to indicate whether he will implement the recommendations of the Nugent Commission of Inquiry and sack him.
In a document seen by Fin24 and submitted to the Presidency, Ramaphosa is asked to "take steps to protect Moyane's rights", including his right to approach the courts to obtain "appropriate relief".
"Should the president be inclined to accept the recommendations, he is hereby specifically invited to explain his conduct in the answering affidavit in the pending Constitutional Court case dealing, inter alia, with the legality of the SARS Commission," the document further states.
The Nugent Commission recommended that Ramaphosa fire Moyane in its interim report. Ramaphosa then reportedly asked Moyane to respond to it within a set time frame.
In the document to the Presidency, it states that the Nugent Commission's recommendation must be rejected "and cannot possibly be implemented following any proper application of the mind of any reasonable President appointed in terms of the Constitution".
The document further argues that such a step would fall outside the terms of reference of the Commission; would be "irrational and self-contradictory" under the circumstances; and would be unfair from a constitutional perspective as well as "tainted with bias".
Moyane submits that it boils down to "a thinly veiled-attempt to campaign for the permanent appointment of Mr Mark Kingon, who is the Acting Commissioner of SARS".
He argues that the Nugent Commission does not include dealing with employment issues as that scope had been delegated by Ramaphosa to a disciplinary inquiry chaired by Advocate Azhar Bham SC - which is still ongoing.
"The content and status of the 'interim' report is unclear and confused. It is continuously shifting depending on the levels of shock understandably expressed in the public domain as to its draconian effect," states the document submitted to the Presidency.
"Most recently Mr Nugent has indicated that the 'interim' report is actually 'final' when it comes to its views on Mr Moyane and the need to replace him with a 'new commissioner'."
Moyane, therefore, argues that the Commission would "necessarily have to close its eyes and ears to the possible presentation of any controverting evidence by Mr Moyane or any person who shares the view that he might be innocent, fit and proper and/or wrongly accused by the previous witnesses, for whatever reason".
The document states that issues such as Moyane's claims of bias on the part of the Commission "have been placed before the Constitutional Court for speedy determination".
"The report is based on findings which are based on consistent and deliberate distortion of facts, evidence and even objectively verifiable data such as revenue collection during Mr Moyane’s tenure when compared to all his predecessors," states the document.
It adds that Moyane's actions - for instance in relation to the so-called "rogue unit" at SARS, "were based on the findings of a team led by eminent counsel, Advocate Sikhakhane SC, a panel chaired by an experienced and retired judge and an internationally reputable firm of independent auditors, all of which he had no logical basis to disbelieve".
Ramaphosa's spokesperson Khusela Diko has confirmed that submissions had been received from Moyane.
"The president is applying his mind to Mr Moyane’s submission and arguments raised," she told Fin24 on Tuesday afternoon.
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