Retired Judge Robert Nugent has admitted meeting Minister Pravin Gordhan prior to him testifying before the SARS Commission of Inquiry, but says there was nothing wrong with this meeting and that it was a necessary procedure as part of the process.
Nugent has been criticised by suspended SARS boss Tom Moyane’s legal team for his alleged bias against Moyane. This led to a spectacular public blow-up between Nugent and Moyane’s advocate Dali Mpofu SC, who is also the chairperson of the Economic Freedom Fighters (EFF).
"I have met on one occasion with Minister Gordhan, in his capacity as former Commissioner, as a courtesy to advise him that I wished him to give evidence relating to the operating model he had introduced, which he explained to me briefly," Nugent told News24.
He explained that this was above board.
"There is no set procedure for the conduct of a Commission of Inquiry and the procedure must necessarily be dictated by the nature of the particular inquiry."
Gordhan’s office also defended the meeting.
"Judge Nugent exercises his discretion on how the Commission conducts its work. The Judge requested a meeting after the Commission had commenced its work, to discuss how SARS had evolved as an institution over the years and specifically how the SARS operating model was developed over time. Minister Gordhan obliged," Gordhan’s ministerial office responded on Tuesday.
"The 'possible perception of bias' is not something that Minister Gordhan can address, it should be referred to the Commission to respond to."
Gordhan was the first witness to testify at public hearings of the Commission last month, detailing the operations model that was introduced during his tenure as SARS Commissioner, between 1999 and 2009.
When asked by News24 about the meetings he had with former SARS employees prior to the commission commencing its hearings, Nugent responded: "In view of the complexity of SARS and the broad terms of reference, the only feasible means of identifying evidence, and especially to locate relevant documents, is by preliminary interviews of relevant people, which commenced after the Commission of Inquiry was established."
Moyane’s attorney, Eric Mabuza told News24 that his client was not surprised by revelations over the meeting between Gordhan and Nugent.
"The whole tale of these parallel inquiries and the countless examples of unfairness related to them is at the centre of our demand that the president [Ramaphosa] should stop one or both of them," Mabuza said.
"The president has said he will consider our demand after receiving the ruling of Advocate Azhar Bham SC. Accordingly, at the moment the future of both inquiries is uncertain and up in the air."
Adv Bham is heading the disciplinary inquiry against Moyane. Gordhan deposed to the affidavit detailing the charges against Moyane in his capacity as former finance minister.
"We hope that he [Ramaphosa] will also factor in this latest revelation of secret meetings held in dark corners. Such a meeting should have been disclosed to the public when Commissioner Moyane’s counsel specifically posed the question to Judge Nugent as to how the attendance of other witnesses had been secured with particular reference to Mr Gordhan and his 140 page presentation. We also specifically raised the choice of witnesses," Mabuza said.
"This is what you must expect when the media celebrates the President's unlawful appointment of his personal attorney as part of a tribunal which is supposed to be impartial," Mabuza added.
Perception of bias
Nugent’s meeting with Gordhan may lend fuel to the fire of the Commission’s detractors – namely Moyane.
Moyane appeared before the commission on 29 June, with Mpofu advancing arguments that the Commission was unfair towards Moyane, and constituted "double jeopardy".
Mpofu argued on Moyane’s behalf that the process was seemingly targeting Moyane, who was at the same time undergoing a disciplinary inquiry headed by Advocate Azhar Bham.
In the week of public hearings, the Commission heard of a “culture of fear” at SARS during Moyane’s tenure and shocking details over how senior officials were sidelined, seemingly after conflicts with Moyane or his second-in-charge, Jonas Makwakwa.
Moyane, who has yet to go under oath to defend any of the allegations, felt aggrieved and wished for Nugent to grant him a “right to immediate rebuttal”.
Nugent dismissed the rulings sought by Moyane in full – sparking a letter from Mabuza to Ramaphosa, setting out similar demands and threatening court action if these demands were not attended to.
Moyane is expected to place the same objections before Bham on 21 July. After Bham’s ruling on the objections, Ramaphosa will then apply his mind to similar objections raised in a letter to him from Moyane’s lawyers.
Moyane wants one of the processes halted while the other is completed.
But according to Nugent, any perception of bias would be mitigated by the procedures of the commission, recommendations and findings of which will be based on written submission and evidence presented – either orally under oath, or through affidavits or affirmed statements.
The evidence he said, would be available for public scrutiny as well, except in cases where confidentiality was required.
"Any person may submit evidence, all of which should avoid any perception of bias," Nugent said.
The commission is continuing its work behind closed doors, with more public hearings expected in August.
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