Suspended SARS Commissioner Tom Moyane’s first step in his fight against the SARS Commission of Inquiry has been shot down by retired Judge Robert Nugent in a scathing ruling delivered on Monday.
It came as no surprise, according to Moyane’s attorney Eric Mabuza, when Judge Nugent refused to grant rulings sought by Moyane in Friday's submissions, made by Advocate Dali Mpofu on his behalf.
Mabuza confirmed that he would be writing to President Cyril Ramaphosa on Monday, and said they would "go all the way" to seek relief from the courts if the issues were not dealt with.
Mpofu on Friday sought only to deal with issues he labelled as proof of bias and unfairness in how the commission was conducting its work - but did not deal with the merits of several serious allegations that emerged from witnesses before the commission.
Moyane sought to have Nugent rule on five matters:
- The discontinuation of the Commission, or a stay of its proceedings pending the outcome of the disciplinary inquiry;
- That all the evidence heard during the first three days of public hearings be expunged from the record, as it was obtained under a cloud of "unlawfulness and procedural unfairness";
- The recusal of Professor Michael Katz as a member of the panel;
- An undertaking that the commission will not entertain evidence relating to any subject matter which may form part of the disciplinary;
- A directive that SARS must provide the necessary legal assistance to the Commissioner to exercise his rights.
Nugent called the submission document "disgraceful" and refused the rulings sought, saying he did not have the powers to ask Katz to recuse himself, nor to give any undertaking to steer clear of evidence that may touch on matters in the disciplinary.
Nugent further stated it was "not competent in law" for him to expunge any evidence or direct SARS to provide Moyane with any assistance.
Katz, Moyane has argued, presents a conflict of interest on the part of Ramaphosa, as Katz was acting as his attorney in several matters.
SARS confirmed to News24 on Friday that it had "no idea" who was footing Moyane’s legal bill, but confirmed SARS was not paying for his legal representation.
While Moyane is not the central focus of the commission, evidence heard so far has painted a picture of a "culture of fear" during his tenure.
Nugent notes in his ruling that he has on a number of occasions called for any person, including Moyane, to make submissions to the commission if they believe any evidence to be untrue.
Moyane was appointed in September 2014 and was suspended this year by Ramaphosa, who stated he had lost confidence in the commissioner’s leadership of the revenue service.
The disciplinary inquiry has stalled after former finance minister Pravin Gordhan filed an affidavit last month detailing the charges against Moyane. Moyane must now respond.
READ the full ruling by Judge Nugent here.
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