Former South African Revenue Service (Sars) commissioner Tom Moyane has filed an additional affidavit to the Constitutional Court addressing President Cyril Ramaphosa’s decision to fire him.
In his supplementary application, Moyane responds to Ramaphosa’s answering affidavit where he said the relief that was sought by the former Sars head was “nugatory” since he made the decision to fire him.
Moyane was fired on November 1 after Ramaphosa upheld the recommendations of the commission of inquiry into issues of governance at Sars, which was headed by retired Judge Robert Nugent.
This was despite the fact that Moyane had a pending application at the Constitutional Court which accused the commission of acting beyond its mandate and challenged its impartiality.
Moyane previously stated that it was unfair to him that his disciplinary inquiry — chaired by Advocate Azhar Bham — and the Nugent commission were running concurrently, saying Ramaphosa would have to suspend either one or both of them.
In the affidavit, Moyane says his disciplinary hearing is still in motion and this is backed up by Bham’s October ruling to postpone it pending the outcome of his court application.
But more critically Moyane said Bham’s postponement “provides against which the impugned conduct of the President ought to be measured”.
“Relying on legal precedent Bham gave a well-seasoned and rational ruling why it would be improper to prejudge the Constitutional Court application. The President has acted in the exact opposite way without any valid reasons” Moyane says in the court documents.
In his postponement, Bham reasoned that Moyane should rather ventilate the issues regarding the parallel inquiries and the involvement of Public Enterprises Minister Pravin Gordhan in the two hearings at the Concourt first instead of being “forced” to do it through the disciplinary.
Bham further noted that continuing with the disciplinary action would result in Moyane going through court proceedings to interdict it.
“I say that not because I am concerned of any threat but in the proper exercise of my discretion, I have got to consider multiple litigations and the undesirability thereof,” said Bham.
Moyane said a “reasonable president” with knowledge of Bham’s ruling would not have acted on Nugent’s recommendations that he should be fired and ignore the Concourt process that was already underway.
Moyane further accuses Ramaphosa of dismissing him, not “as a result of proper application of the mind but as a strategum to deal with the constitutional court application”.
He questions why just minutes after his attorneys received Ramaphosa’s letter that he was being fired, Ramaphosa seems to have been filling answering papers to the Concourt application – where his main argument is that Moyane court challenge was “moot” because he was no longer the Sars head.
Moyane said the argument of mootness was a “stillborn effort which betrays either desperation or serious lack of understanding of what mootness is”.
He describes mootness as a situation where a dispute has become academic or there is no live controversy between the parties saying that it does not apply because the lawfulness of his removal was “very much live and disputed”.
“It would be impossible to sustain a defence of mootness in a situation where the removal from office is being challenged precisely on the basis that the objections which have been raised in the Constitutional Court application would, if upheld, render the removal from office unlawful,” Moyane said.
He adds: “This simply means that the lawfulness or otherwise of removal, far from being moot, is actually dependent upon the outcome of the Constitutional Court application”.