Suspended South African Revenue Service (Sars) commissioner Tom Moyane is continuing his fight to halt the two inquiries into tax administration and his alleged misconduct, by approaching the Constitutional Court.
Moyane’s previous attempts have gotten nowhere.
He raised his objections to President Cyril Ramaphosa, and then to retired Judge Robert Nugent, who is heading the Nugent commission of inquiry at Sars, as well as advocate Azhar Bham SC, the chair of his disciplinary inquiry, asking them to suspend one or both inquiries.
Moyane’s objections to Public Enterprises Minister Pravin Gordhan giving evidence against him, claiming he was a “hostile witness” and “biased”, also failed.
Now the president, Gordhan, Bham and Nugent, as well as Nugent’s advisers — Advocate Mabongi Masilo, Michael Katz and Vuyo Kahla — are all cited as respondents in Moyane’s approach to the Constitutional Court.
The Mail & Guardian understands that all seven respondents have been served with court papers, which will be filed at the Constitutional Court on Monday.
In the application, Moyane asks the court to set aside Ramaphosa’s decision to continue with the parallel inquiries and declare the decision “unlawful, invalid, unconstitutional, in violation of the constitutional obligations of the President and/or in breach of his oath of office”.
When Moyane first objected, he said it would be unfair for him to face inquiries into the same issues in two different forums.
The Nugent commission is probing issues of tax administration and governance at Sars between April 2014 and March 2018 when Moyane was at the helm.
In the Bham inquiry, Moyane faces charges of misconduct and violating his duties in terms of the Sars Act. This specifically relates to his alleged mishandling of a Financial Intelligence Centre report, making unauthorised bonus payments, misleading Parliament and instructing an employee not to cooperate with a KPMG investigation.
Moyane asks the Constitutional Court to order Ramaphosa to suspend one or both of the inquiries and to declare Gordhan’s participation in them as “unlawful, irrational, unconstitutional”.
Moyane also wants certain rulings made by Nugent and Bham to be reviewed and set aside. Both had ruled that they did not have the legal power to stay any of their inquiries because Ramaphosa was responsible for instituting them.
Bham also dismissed Moyane’s application to allow for oral submissions at the hearing, which is paper-based. Bham said if — during the process of the inquiry — matters arose that required oral evidence and cross-examination he would make the discretionary call. Moyane wants this set aside.
He also wants Nugent to be removed from chairing the Sars commission, saying that on September 7 he received a letter from Nugent in which he “unlawfully [threatened] to recommend the removal of the applicant [Moyane]”.