AGE OF ACCOUNTABILITY
Fired mothers take former SARS Commissioner Tom Moyane to court and win
In a significant move also, Labour Court acting Judge Smanga Sethene accepted extracts from Nugent and Zondo commission findings to rule in favour of the two women.
Two women who were shafted in 2017 by former South African Revenue Service (SARS) commissioner Tom Moyane during “restructuring” imposed by now disgraced Bain & Co have been vindicated in the Johannesburg Labour Court.
In a searing and lyrical judgment, acting Labour Court Judge Smanga Sethene on 22 August, framed the ruling in favour of Hope Gloria Mashilo and Tshebeletso Seremane as a victory for women.
“Courts should not be meek and gentle when confronted with instances that have all the traits of any attempt to keep women subjugated in any form at workplaces,” he said.
The executives have since been reinstated. SARS was ordered to pay punitive costs.
Sethene found that the dismissals of Mashilo and Seremane were unfair.
“Their main sin was to question the integrity of the 2015 restructuring sponsored by Mr Moyane with Bain as service provider,” he said.
Both women refused to accept lower-paid jobs as did many other SARS professionals who haemorrhaged from the institution.
In an email, Mashilo had previously made a protected disclosure with regard to Moyane’s hiring of Bain & Co to restructure SARS.
Mashilo and Seremane have both fought for several years for reinstatement and also, significantly, admitted to the court extracts from the Nugent Commission (into SARS) and the Zondo State Capture Commission, an action SARS had “vehemently” opposed.
SARS had argued that both commission reports would be “hearsay evidence” in terms of the law of evidence but Sethene said he found “no iota of credence in the submissions advanced on behalf of SARS.
“I reasoned that the interests of justice were paramount in this case”.
SARS, said the acting judge, could also not show what prejudice it stood to suffer should the extracts from Zondo and Nugent commissions be admitted.
“I find the opposition by SARS not to have this court admit the Nugent Commission’s report is misplaced and without foundation. In any case, the President of the Republic appointed the Nugent Commission solely to deal with the affairs of SARS”.
He said that Bain’s “reimbursement” of SARS for services rendered during Moyane’s tenure was an engagement in “reputational cleansing to its own tattered image”.
“Were it not for the Nugent Commission and the Zondo Commission, would Bain have reimbursed SARS?
“That is doubtful; not even in the wilderness of nincompoops,” said Sethene.
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Mashilo had been employed with SARS since 2005, where she began as a Senior Human Resources official. In 2015 she was Executive: Workplace Wellness, dealing with employee assistance programmes, occupational health, extended sick leave and chronic diseases.
Prior to this Mashilo had worked for the National Intelligence Agency (later to become the SSA) in human resources.
She testified that in August 2015 top management had been called to a meeting with Moyane and Bain where the “new structure” had been presented.
Staff were informed by Moyane, said Mashilo, that then Minister of Finance, Nhlanhla Nene, had appointed an advisory committee led by retired Judge Frank Kroon “and that the structure had been approved by the minister and the judge.”
Nene later testified to the Nugent Commission that he had been misled about the “restructuring process” and Judge Kroon too distanced himself from “the whole process including the approval of the structure”.
Mashilo testified that following her dismissal by Moyane she had “lost everything.”
Seremane joined SARS in 2009 as Executive: Integrity and Organisational Culture. She testified that prior to the arrival of Moyane, “SARS valued integrity”. She too had been affected by the Bain “restructuring”.
Her dismissal had “broken her” she told the court. Her marriage crumbled and she had been in the process of building a house for her family when she lost her job.
Sethene said that what was “startling” was that Moyane joined SARS towards the end of September 2014 and a month later, in October 2014, indicated already that SARS operating model must be reviewed.
That he was new and would need time to study the environment seemed not to plague Moyane, who was previously National Commissioner of Correctional Services, said the judge.
“Without doubt, SARS, was s foreign environment to him. SARS is a specialised environment.
Sethene, at the commencement of his judgement published an extract from the Qur’an:
Oh you who believe!
Stand out firmly for justice, as witnesses
To Allah, even as against
Yourselves, or your parents,
Or your kin, and whether
It be against rich or poor
For Allah can best protect both”.
Returning to it later in his ruling, Sethene referred to the Qur’anic injunction and said Masilo had “stood firmly for justice for the benefit of SARS and the land.”
Sethene said, “Ms Mashilo made her disclosure to Minister of Finance (Malusi Gigaba) and the Chair of the Finance Committee (Yunus Carrim). There is no evidence tendered in this court that either Mr Gigaba or Mr Carrim entertained Ms Mashilo’s disclosures”.
He added that the “injustice visited upon Ms Mashilo and Ms Seremane deserves the unwavering protection of this court. This court cannot consort with any corrupt activity at workplaces calculated to circumvent any provision of the Labour Relations Act.”
The court could also not “consort with anyone who tramples upon women to exploit their vulnerability at workplaces.
“If this court were to turn a blind eye on what occurred at SARS during Moyane’s ‘restructuring’ it would be failing its constitutional obligations,” said Sethene.
It was in the interests of justice and the rule of law for the court to order current Commissioner Edward Kieswetter, “to welcome Ms Mashilo and Ms Seremane back at Lehai effective from 1 September 2022”.
Update: SARS released a statement after 10pm indicating they are going to appeal: “The South African Revenue Service (SARS) has noted the Labour Court judgement of 22 August 2022 on the matter between Mashilo and Seremane v the Commissioner of SARS. The matter relates to an incident that dates back to 2015 during the tenure of the former Commissioner.
After studying the judgement, SARS, on the advice of counsel, has opted to note an appeal against the above judgment. SARS believes that the court made a material error in arriving at its conclusion. In this regard, SARS believes that another court will come to a different conclusion given what is at issue.
SARS will not be commenting further beyond this statement.” DM