President Cyril Ramaphosa's Tom Moyane-shaped headache is not getting any better for him. More than three months since that notorious meeting at Ramaphosa’s Hyde Park home where the president asked Moyane to resign and Moyane refused, resulting in a screaming match, the impasse is not ending. And Moyane is using every legal avenue at his disposal, again giving Ramaphosa an ultimatum and, again, threatening legal action.
After the blistering ruling by Judge Robert Nugent who is heading the SA Revenue Service inquiry into tax administration and governance on July 2 2018, Moyane’s legal team changed gear and wrote to Ramaphosa, demanding that he de-establish the Sars inquiry and Moyane’s disciplinary inquiry – or at least one of them:
“Respond to the aforesaid, in compliance with our client’s demands, as soon as possible but no later than 16h00 on Friday 6 July 2018, failing which our client will have no option but to enforce his constitutional rights including but not limited to approaching the High Court or the Constitutional Court on an urgent basis to seek appropriate relief,” the letter reads.
This is not the first time Moyane has threatened Ramaphosa with legal action. Or the second. Or the third. Regardless, Moyane is not budging that both inquiries are unfair and unlawful:
“Our client has sharply raised in both proceedings, the gross unfairness of being simultaneously subjected to both processes when the subject matter enquired into, as it pertains to him, is substantially the same and/or largely overlapping,” Moyane’s lawyer Eric Mabuza wrote to Ramaphosa.
Moyane’s legal team made the same point to the chairs of both the inquiries. On June 29 they were at pains in arguing their “double jeopardy” point, that it is unfair for Moyane to be facing two inquiries at the same time. Before they could get a ruling on the matter, they decided to make the same point in a motion of objection in the disciplinary inquiry headed by advocate Azhar Bham:
“The issues which arise and are disputed in these proceedings are apparently and invariably at the core of a separate process instituted by the same president, namely the ongoing commission of inquiry into tax administration and governance at Sars. It is unfair to subject the commissioner, directly or indirectly, to two separate and parallel processes, concerning the same subject matter,” Moyane’s lawyers wrote to Bham.
But Judge Nugent threw that argument out, saying:
“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”.
Realising that they will not get any joy from either Judge Nugent and Bham, Moyane’s legal team has opted to take the fight personally to Ramaphosa:
“A second objection, raised only in the Commission of Inquiry, is your unlawful appointment of Prof [Michael] Katz as an assistant and thereby a decision maker therein, despite the close personal relationship and association you enjoy with him more specifically but not limited to him being your personal and business attorney in respect of past and present legal proceedings. This renders Prof Katz as an assumed agent or extension of yourself,” continued the letter to Ramaphosa. Again, this point was dismissed by Judge Nugent but Moyane is insistent.
The tone of the letter was cheeky – similar to the submission made to the Sars inquiry which Judge Nugent ruled was “disgraceful”.
“At this stage, suffice to say that, based on such perceptions as well as the patent unfairness and irrationality (not to mention the waste of taxpayers’ money) associated with your simultaneous appointment and/or institution of both inquiries as well as your appointment of Prof Katz, we are instructed to (make these) demands,” Mabuza wrote.
Moyane’s legal team went further to tell Ramaphosa that they raised the same issues with both Judge Nugent and Bham and as a last resort, they are now raising the matter with him.
Ramaphosa has the option to either give in to Moyane’s demands so that at least one of the two inquiries can push ahead. In that unlikely scenario, Ramaphosa would respond by stalling the Sars inquiry pending the outcome of the disciplinary inquiry but there is no guarantee that Moyane would actually answer the four charges he faces there.
Moyane’s letter to Bham already suggests that, as it questioned Minister of Public Enterprises Pravin Gordhan’s role in his disciplinary hearing. Judge Nugent made an interesting point when he said Moyane’s submissions were directed at “throwing bait before the media” and “reviving in the media an allegation that a ‘rogue unit’ existed within Sars”.
The developments in Sars and with Moyane are sometimes complicated even for those with a keen interest in it. So as long as Moyane obfuscates, there will be a cloud hanging over Ramaphosa’s administration. Threats of approaching court by Moyane’s counsel is now seen by the Presidency as crying wolf and they are refusing to blink first.
It helps their case that Moyane has not responded to the actual accusations made against him, instead he has challenged the legality and process of the probes themselves. Any rational mind will tell you that Moyane’s moves so far smack of desperation to stall the president into frustration.
Yet this does not make things easy for Ramaphosa because the optics doesn’t necessarily bode well for him. A fight lasting over three months with the head of the revenue collector at a sensitive time for the organisation and the country is not a thing the president, or South Africa, need right now. DM
Qaanitah Hunter is an EWN reporter.
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