ANALYSIS

In his quest to delay Ramaphosa, Moyane’s getting personal with Judge O’Regan

By Qaanitah Hunter 18 May 2018

Suspended SARS commissioner Tom Moyane (Photo Leila Dougan for Daily Maverick), Judge Kate O'Regan (Photo courtesy of CDE South Africa)

The fight between suspended SARS boss Tom Moyane and President Cyril Ramaphosa has just morphed from a street fight to a full-blown war. Neither side is backing down and a quick glance at a fresh batch of legal correspondence shows it’s about to go nuclear.

When it became clear that a settlement agreement in lieu of his resignation is firmly off the table, Tom Moyane and his legal team dived into the second phase of their defence. They are apparently trying to buy time as they prepare to take Ramaphosa to court and at the same time they have picked a bone with the judge chosen to head the disciplinary inquiry, Kate O’Regan.

Moyane’s legal team wrote two letters on Thursday: one was addressed to Kate O’Regan and the other to the State Attorney who is acting on behalf of Ramaphosa. In short, Moyane has accused O’Regan of a conflict of interest and has demanded that she recuse herself from chairing his disciplinary inquiry. While that may be the demand, it seems as if this is another ruse to delay the inquiry from deciding Moyane’s fate.

O’Regan has been given until the end of business on Friday to recuse herself because of her association with Corruption Watch – a civil society organisation that has taken a keen interest in the misgivings at SARS. Moyane’s lawyer Eric Mabuza argued in a letter to O’Regan on Thursday that they do not believe she will be objective and unbiased in the inquiry. They claim that her appointment to preside over the inquiry is “wholly unwarranted and undesirable”. Corruption Watch has long lobbied for Moyane’s removal, laid criminal charges against him and welcomed a decision by Ramaphosa to subject him to a disciplinary inquiry.

It is important to note that O’Regan has not made any public pronouncement of her own on Moyane, but despite this, his legal team is arguing that her association with Corruption Watch is enough to warrant a conflict of interest. Mabuza wrote in the letter:

He (Moyane) does not believe that you will be able to bring an objective and unbiased mind to the inquiry. Given the obvious importance of this matter, Mr Moyane wants nothing more than to appear before a judge who has no iota of bias against him. Regrettably, he does not believe that you can discharge such responsibility in the circumstances of this case.”

After pointing out what they claim is a conflict of interest, they take it a step further, directly attacking her integrity:

In fact, to put it bluntly, given the obvious and palpable perception of bias and conflict of interest on your part, it is rather surprising that you still accepted the appointment.”

They then do the same to Ramaphosa, in a separate letter, questioning how he did not foresee this.

It beggars belief how the President, out of all available options, appointed a person who is so clearly conflicted as a member of Corruption Watch, a body which has adopted an openly hostile and unfair public posture against our client.”

While one is quickly tempted to regard this development as a delaying tactic, Moyane and his legal team pre-empted this and therefore premised their new fight on the age-old legal principle: justice must not only be done but it must be seen to be done. It is at this point that they ask O’Regan to recuse herself.

Their letter turns benevolent soon after, telling the judge that they did not want to “demean the dignity and high esteem of our judiciary” by asking her to recuse herself in open court. It is the not so subtle hint in this letter: if you do not resign by the end of business on Friday, we will see you in court.

In their letter to the State Attorney who is acting on behalf of Ramaphosa, Moyane’s legal team turned positively abrasive. They warned Ramaphosa that they are busy drafting papers to challenge his decision that the procedure of the inquiry would not change – that it will only rely on written affidavits and not on oral representations:

This is plainly unlawful and irrational,” Mabuza wrote to the State Attorney.

They then mention to Ramaphosa the second round of their fight – to ask O’Regan to recuse herself which is where they accuse the president, again, of disregarding fairness and the rule of law.

South Africa has been through enough high-level disciplinary inquiries and other commissions to know that Moyane is following a pattern of creating side-shows to frustrate the president into a settlement. Whether or not O’Regan should recuse herself is left up to subjective interpretation of law.

What remains, however, is that Moyane is determined to use every legal avenue available to him to avoid facing the 12 charges of misconduct against him. It is not the end of the fight. The next round will be in an open courtroom where the man in charge of the country and the man in charge of collecting taxes will face off.

Maybe Mr Moyane learned a thing or two from his mentor, Jacob Zuma, about the mostly successful delaying tactics, but that could certainly be true of his opponent. One thing is for sure – it won’t be a pretty sight.

Here we go again. DM

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SCORPIO

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"We spend the first year of a child's life teaching it to walk and talk and the rest of its life to shut up and sit down. There's something wrong there." ~ Neil deGrasse Tyson