SARS inquiry

In a withering ruling, Judge Nugent refuses all Moyane’s demands

By Pauli Van Wyk 2 July 2018

SARS Commissioner Tom Moyane during the budget lock up in parliament on 21 February 2018 shortly before Finance Minister Malusi Gigaba's maiden Budget Speech. Photo by Leila Dougan

Retired Judge Robert Nugent summarised the contents of the document handed in by suspended SARS Commissioner Tom Moyane’s counsel Dali Mpofu, as a “disgrace”.

Moyane’s counsel Dali Mpofu on Friday addressed the SARS Commission of Inquiry after a week of public hearings. He labelled the commission a kangaroo court, and said it was biased and oppressive and accused it of having prejudged the case.

But Judge Robert Nugent would had none of it and gave counsel a schooling in law. In his dissection of the case on Monday, he highlighted the fault lines in Moyane’s argument, saying his submission was “… no less disgraceful than its repetition in counsel’s address. The content of the document plays fast and loose with the facts, draws inferences from inadequate material, and is littered with abuse, invective, and sinister suggestion, purporting to support an allegation that, so it was said, ‘the commission has prejudged the issues before it and is merely going through the motions to reach a predetermined outcome’.”

According to Nugent, none of Moyane’s demands were “competent in law and on that ground alone the request for the rulings must be refused”.

He continued, saying that counsel is “well aware that inferences are properly to be drawn only if they take account of all the facts, and it is apparent that counsel is in possession of few facts indeed. Indeed, counsel was indifferent to further facts that were related to him in the course of the hearing, intent, as he was, on ploughing on, whatever the facts might be. The allegations that are made, on the basis of half-baked inference are a disgrace and are rejected.”

Nugent addressed every one of Moyane’s five demands:

Demand One Moyane wanted the Nugent Commission to be discontinued, or in the alternative be stopped, pending the outcome of his disciplinary inquiry – a separate process also initiated by President Cyril Ramaphosa.

Nugent said the Commission was established by proclamation under the hand of the president. “The Commission has no power in law to dissolve itself. It also has no power to discontinue its inquiries. It has been instructed by law to make the inquiries listed in its terms of reference and that is what it must continue to do.”

To argue that the commission should not be conducted while a disciplinary hearing is pending against Moyane “has no merit”, Nugent continued. “Each procedure serves its separate function and there is no reason why one function should be delayed while the other is performed, albeit that they might in some respects cover the same ground. Talk by counsel for Mr Moyane of ‘double jeopardy’ is misplaced. Mr Moyane is not placed in jeopardy by the Commission’s performance of its functions…”

Demand Two Moyane demanded that all evidence submitted to the commission in its first week of public hearings be “expunged from the record as it was obtained under a huge cloud of unlawfulness and procedural unfairness”.

Nugent laid out the law: “There seems to be a view in some quarters, evidently shared by counsel in this case, that evidence can be made to go away by a process of ‘expungement’.”

Nugent argued that a Commission is not a court, which is constituted to “establish facts and the law does not require it to ignore evidence. It should be conscious of the reason why some evidence is not admissible in a court, and it might be wary of relying on evidence of that kind, but it is not precluded from receiving it. Once oral evidence has been given it is not possible for a commission or even for a court, to make the evidence disappear. The commission might choose not to rely on the evidence but that is something else. A ruling that purports to make the evidence disappear is not possible, and a ruling that requires the Commission to ignore it is not competent in law.”

Demand Three Moyane further wanted Prof. Michael Katz to recuse himself as an advisor to the commission. The inference from Mpofu was that Katz was closer to the president than Katz cared to admit, but Mpofu did not provide the evidence to back up his statement.

Nugent said it did not matter:

Professor Katz has been appointed to assist this commission by Proclamation of the president. It is not competent, as a matter of law, for this commission to override the proclamation and rule that he should not fulfil that role.”

Nugent further ruled that Katz is not ‘conflicted’ when meeting President Ramaphosa because Ramaphosa is “doing precisely what might be expected when the President seeks information and advice on tax collection”, which is to consult with Katz, who is a leading tax authority in the country.

Demand Four An undertaking was sought by Moyane that the Commission will not entertain or hear evidence relating to any subject that is to be discussed in the disciplinary proceedings.

Nugent refused, again:

This Commission will give no undertaking not to receive evidence that is relevant to its inquiry, nor may it do so as a matter of law. It has been instructed to fulfil its terms of reference and it must do whatever is necessary and appropriate to perform that task.”

Demand Five Moyane also wanted SARS to pay his legal fees for all matters relating to the Commission.

Nugent said the Commission has no power in law to direct SARS to pay his fees.

Before Nugent delivered his decision, attorney Eric Mabuza said Moyane will take the matter to court if needs be:

Believe me, we will”.

He confirmed their intentions afterwards:

It is unfortunate that the judge made a personal attack on counsel. But knowing Mr Mpofu, he is able to defend himself, and will do so at a later stage.”

Mabuza failed to mention that Mpofu called the Commission a kangaroo court that had prejudged the matter and was “just going through the motions” to get to a predetermined outcome.

Mabuza continued, saying:

We had to exhaust this avenue. We will now approach the President. And if we do not get the relief sought, we will go to court.” DM

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