Suspended SARS commissioner Tom Moyane, who is refusing to step down, wants to drag President Cyril Ramaphosa to court following a heated shouting match over millions of rands that SARS paid out to the Gupta family.
Moyane’s lawyer is preparing a major legal attack, challenging the disciplinary charges brought against him by Ramaphosa this week on the grounds that there was already a predetermined outcome to fire him from his R3.6-million-a-year job.
This claim, according to his lawyer Eric Mabuza, follows a one-on-one meeting convened at Ramaphosa’s “private home” on March 18, when the president “shouted” at Moyane, questioning him at length about a R70-million VAT refund paid by SARS to Gupta company Oakbay.
Also at issue was Moyane’s handling of serious criminal allegations against his former deputy, Jonas Makwakwa.
During the meeting, Ramaphosa asked how everything at SARS could be fine “when his ‘second-in-command’ was seen stuffing money into an ATM machine”.
Makwakwa had resigned days before, following reports that New Integrated Credit Solutions, which has a debt-collection deal with SARS, paid him R600 000.
According to Mabuza, when Moyane “corrected” Ramaphosa and explained that he was the only one in charge of SARS, and that there was no second-in-command, the president dismissed this as beside the point.
According to Moyane’s lawyers, the president said only one word in response to the commissioner’s insistence that he was in charge at SARS: “Whatever.”
“Thereafter the president asked Mr Moyane about the Gupta VAT payment story. Mr Moyane explained that he had nothing to do with the issue. It was at that stage that the president told Mr Moyane that he had lost confidence in him and asked him to resign.”
The conversation came days after reports that Moyane had pressured staff to make allegedly illegal VAT payments to the Guptas.
“It is curious that the president could have arrived at a rational decision about the competence or suitability of Mr Moyane in a meeting which only lasted for 30 minutes. If anything, it suggests that the president had already made up his mind,” said Mabuza.
“Second, it is also strange that the charge sheet [served on Moyane this week] does not contain anything about the Gupta VAT issue, the very issue which allegedly caused the president to lose confidence in Mr Moyane.”
Mabuza added: “It is important to point out that Mr Moyane has respected the process by keeping quiet for all this time and he is very aggrieved that the Presidency earlier this week leaked that he was going to receive charges by the end of the week (which could only have been known to the Presidency) and then . . . issued a statement confirming that he has received charges and even giving the identity of the appointed chairperson.”
His client “can no longer be expected to remain silent when his privacy rights are being constantly violated by the Presidency”.
Presidency spokeswoman Khusela Diko said Ramaphosa was responsible for the management of all “career incidents” of the commissioner.
“Mr Moyane has not been dismissed from SARS; he has been suspended and a disciplinary inquiry instituted to get to the bottom of all the allegations and accusations levelled against him. Any issues he has with the process will also be heard and settled during the hearing,” she said.
“The president has consistently respected the confidentiality of the discussions and correspondence with Mr Moyane and will continue to do so. That is why the Presidency will not comment further on the account given by Mr Moyane’s attorney.”
Ramaphosa’s office said on Friday that Moyane would face a disciplinary inquiry, chaired by former Constitutional Court Justice Kate O’Regan. Advocate Dali Mpofu SC will act for Moyane.
The Sunday Times has seen the nine-page charge sheet against Moyane, dated May 2, in which he is accused of “having committed misconduct in violation of your duties and responsibilities as Commissioner of SARS” in terms of the SARS Act, Public Finance Management Act, SARS Code of Conduct and the constitution. The allegations include:
That he “grossly mishandled” the Financial Intelligence Centre report, given to him in May 2016, about “suspicious transactions” involving Makwakwa, the SARS chief officer for business and individual tax, and his girlfriend, Kelly-Ann Elskie. The FIC referred the report to SARS to determine whether there was evidence that the pair were involved in tax evasion, money laundering, corruption and/or violations of the Public Finance Management Act;
That this alleged gross mishandling involved Moyane failing to take “any rational or effective action” in response to the report and failing to report “promptly or at all” the report’s “serious” allegations to then minister of finance, Pravin Gordhan, or the Hawks;
That Moyane disclosed the contents of the report to Makwakwa and Elskie, and allowed them to keep rendering services to SARS. Moyane also stands accused of repeatedly asking the FIC to provide information to the pair’s lawyers about the allegations against them when he “ought to have known” they were not entitled to that information;
That — only after the FIC report was published by the Sunday Times in September 2016 — Moyane approved and signed off terms of reference for an investigation that was “wholly inadequate to ensure an effective investigation into the report”;
That he failed to ensure that SARS conducted a tax-evasion investigation into Makwakwa and Elskie, and failed to ensure that investigators PwC were given access to the pair’s phones and computers, as well as accounting records and bank accounts;
That in November 2017 he lifted Makwakwa’s suspension and allowed him to return to work “notwithstanding the pending investigations and inconclusive investigations in respect of many of the issues raised in the report”;
That Moyane’s “gross mishandling” of the FIC report “brought SARS into disrepute and caused serious damage to [its] credibility and legitimacy”;
That, between July 2016 and November 2017, Moyane took a decision to pay “performance bonuses” to managerial employees of SARS without the approval of the finance minister. This caused the auditor-general to find SARS guilty of “internal control deficiency and irregular expenditure, causing reputational harm to the institution”;
That Moyane misled parliament twice: once in relation to the investigation into Makwakwa, and a second time, in March, by claiming that he had no involvement in SARS procurement processes “whilst knowing this not to be true”; and
That, on May 7 2015, he instructed SARS official Helgard Lombard not to co-operate with the KPMG investigation into the SARS High-Risk Investigation Unit (the so-called “rogue unit”) by “instructing Mr Lombard to feign illness on the day he was scheduled to be questioned”.
Mabuza told the Sunday Times that Moyane intended to plead not guilty to all 12 charges and would go to court to compel Ramaphosa to give oral evidence as to why he lost confidence in him.
“He just wants justice, whether he goes back or not will be determined by a lawful and fair hearing and not the fundamentally flawed disciplinary process being proposed.
“It is unheard of that an inquiry can be conducted on paper. It will deprive Mr Moyane of his constitutional right to confront his accusers. To that end, Mr Moyane intends to challenge the process, if necessary in court, so that his accusers can testify orally, as opposed to on paper,” Mabuza said.
“The president is central to the matter. He signed the charge sheet. He is in fact the only dramatis persona. It is he who allegedly ‘lost confidence’ in Mr Moyane . . . Ramaphosa must testify or Moyane must walk scot-free. It’s as simple as that.”
Moyane’s lawyers said he had told Ramaphosa he would accept 18 months’ salary plus bonuses for three financial years and a “joint statement on his integrity” to walk away from his position. They said Ramaphosa initially offered Moyane six months’ salary to resign, and later raised it to a year’s salary. Moyane refused.