Judge Hans Fabricius handed Tom Moyane a devastating riposte to the latter’s attempt to claim that President Cyril Ramaphosa had acted irrationally and hence illegally when he dismissed Moyane as Commissioner of the South African Revenue Service.
Moyane had rushed off to the Constitutional Court to prevent the continuation of the Nugent commission and hence his removal from office on the basis of Judge Nugent’s findings, which were contained in an interim report and upon which the president had relied in arriving at his decision. When the Constitutional Court refused direct access and thus would not hear the case, Moyane approached the North Gauteng High Court for a range of interim relief including his reinstatement as commissioner pending a disciplinary process and the prevention of the president from appointing a new commissioner.
Judge Fabricius was careful to ensure that a court should not encroach without clear legal justification upon the executive terrain. Thus a court “must assess carefully how and to what extent its interdict will disrupt such executive functions conferred by law”.
In this case the judge found that the balance of convenience was decisively in favour of the president. SARS is a critical institution for the stability of the state. Its capacity to perform as in days of old has been significantly degraded. Stability and coherent leadership are desperately needed at SARS. The compelling national interest obviously overshadows the interest of Moyane which at best amounts to a loss of salary.
Counsel for Moyane argued that the prospects of success were good regarding the final relief which would be sought, being the reinstatement of Moyane as commissioner as a result of a finding that the president had acted irrationally in firing him. In dismissing this hugely optimistic set of submissions, Judge Fabricius relied on the majority judgment of the Constitutional Court in Masetlha v President of the Republic of South Africa to find that the president owed Moyane no duty of procedural fairness; all that was required was that he act rationally. Further, on the basis of the decision of the Constitutional Court in DA v President of the Republic of South Africa, the president was obliged to take account of the Nugent report in coming to a decision on the fate of Moyane. Indeed in that case concerning the fitness for office of Menzi Simelane as head of the NPA, the court lambasted the then president Jacob Zuma for ignoring the Ginwala report which had made adverse findings about Simelane.
In this case, the judge went further: he said that he had read the interim report of the Nugent commission and on the basis thereof agreed fully that there was an urgent need to remedy “this disaster’’. The judge emphasised that an order of reinstatement into an office was a discretionary remedy which is hardly appropriate in a case where the president has lost faith in Moyane to head as critical an institution as SARS.
And that brought the judgment back to the competing interests in this case: A national interest of ensuring that SARS collects the revenue needed for the state to function properly versus Moyane’s claim for compensation, that is a purely monetary claim.
There was also the added oddity in this case; Moyane had sought interim relief pending further litigation to set aside the Nugent commission as well as the setting aside of the dismissal decision. But once the Constitutional Court had refused to hear this application there was no pending application for final relief. As interim relief only lasts until the case for final relief is determined, there was no legal basis by which interim relief absent a proper, live application for final relief, could be granted.
As if that was not sufficient for one day, the judge noted the insulting and defamatory language which Moyane had employed in his court papers against the president and Judge Nugent, a hugely distinguished judge. How, one might ask, can a litigant ask to be returned to his job by the very person whom he insults and defames, particularly when the basis of the dismissal decision is grounded on an erosion of trust. This conduct resulted in the judge ordering that Moyane pay costs on a punitive scale.
The ink was not dry on the pages of the judgment when it was announced that Moyane would lodge an appeal. On the reasoning employed by Judge Fabricius, and the applicable law, it is a long shot that such an appeal will meet with any success.
At the very least one can hope that this litigation ends very soon, for, as the judgment notes, this is a case of pitting a vital national interest which affects 55 million South Africans versus a monetary claim of one individual which can be finally determined in a separate legal process. For the sake of the country, it must end soon. DM