#TomMoyane’s hearing is currently underway in Sandton. He sits beside his counsel, Advocate Dali Mpofu, who says their submissions have been misunderstood. He says they avoided referring to Pravin Gordhan as a witness.
#TomMoyane sits in a maroon suit beside Mpofu. Advocate Azhar Bham speaks now and says Gordhan does not hold the same powers now as he did when he was Minister of Finance. 
#TomMoyane “I am not questioning Mr Gordhan as a witness,” says Mpofu. His point, he says, is “if you are a public official you are not allowed to exercise powers except by public provision” and authority is derived from @ParliamentofRSA and law.
#TomMoyane Some to and fro between Bham and Mpofu over three questions. Mpofu is dealing with a submission on what authority Gordhan does and doesn’t have now in relation to the disciplinary action. “There are processes which must link,” says Mpofu.
#TomMoyane “You can’t just rock up, in a Constitutional democracy nogal,” says Mpofu, who is disputing the authority Gordhan in relation to disciplinary action against Moyane. “You can’t do what Minister Gordhan has done,” says Mpofu.
#TomMoyane reads from Gordhan’s statement and notes that Gordhan states he has personal knowledge up to March 2017, which he noted is a year prior to when President Cyril Ramaphosa suspended Moyane as @sarstax commissioner in March 2018.
#TomMoyane Mpofu takes issue with late affidavits. Bham asks Mpofu if he is saying he must dismiss the confirmatory affidavit. “No one has asked you to accept it. You may accept it out of the goodness of your heart,” Mpofu tells Bham.
#TomMoyane Mpofu reads from Gordhan’s affidavit again and says Gordhan acted unlawfully, in terms of his “custody and control” of certain documents linked to this matter.
#TomMoyane Mpofu says, “The only reason we are here is because Mr Moyane was suspended pending a disciplinary inquiry.” He adds, “Mr Moyane is here because the President says he lost confidence in him for whatever reason.”
#TomMoyane Mpofu for Moyane submits that Gordhan rocked up to a party to which he was not invited and ran the show which is not allowed in law.
#TomMoyane Gordhan’s affidavit is, according to Mpofu, unlawful. He repeats his submission that it is “not worth the paper it is written on” and submits Gordhan is unlawfully in possession of papers.
#TomMoyane Mpofu says that Gordhan is “a biased individual” who “tried to rule from the grave” as a former SARS Commissioner and there is animosity between Gordhan and Moyane.
#TomMoyane “We want him here,” says Mpofu of Gordhan. He speaks of Gordhan’s bias against Moyane, him “throw[ing] a paper at us” and Gordhan’s role in the Nugent Commission of Inquiry which was “disparaging to Mr Moyane.”
#TomMoyane Mpofu is scathing about news articles about the inquiry and contesting it, rather than going ahead. “We need to know what this case is about,” says Mpofu.
#TomMoyane Mpofu resumes his submissions at the inquiry again underway in Sandton. He is suggesting Bham either lessen the weight of Gordhan’s submissions or dismiss them altogether. More coming up on channel 403.
#TomMoyane In belated reply to @ThembiMrototo’s question to me earlier on eNCA Moyane faces disciplinary sanction over alleged misconduct, and allegedly violating the SARS Act, Public Finance Management Act and the @sarstax Code of Conduct.
#TomMoyane is accused of misconduct in connection with the investigation into former senior SARS official Jonas Makwakwa and the alleged mismanagement of VAT refunds which allegedly “brought SARS into serious disrepute”.
#TomMoyane Mpofu has criticised Gordhan for referring to the charge sheet in his affidavit and not the terms of reference, which Mpofu intimated suggests, he claims, Gordhan “has not seen the terms of reference.”
#TomMoyane Mpofu speaks now on Nugent and Moyane’s argument Nugent not cover aspects of these disciplinary proceedings, that they gave Nugent an option of not veering into the territory which would be covered in this disciplinary inquiry. Nugent, says Mpofu, did not accede.
#TomMoyane Mpofu says Nugent “acknowledges that there is an overlap” between the disciplinary inquiry and the Nugent commission which, says Mpofu, is also alluded to by President Cyril Ramaphosa when he refers to “overlapping legal processes”.
#TomMoyane Mpofu says is Bham finds there is no overlap “then my name is not Dali Mpofu” to which Bham jokingly replies, “I won’t make THAT finding.” He moves to VAT refunds and the “VAT issue” but counsel for Ramaphosa intervenes and says Mpofu is giving evidence from the bar.
#TomMoyane Advocate Heidi Barnes for Ramaphosa cautions Mpofu from the bar, but Mpofu is not having it and objects. Bham says he wants to get this hearing done, and will not admit evidence from the bar. He later asks Mpofu to wrap up.
#TomMoyane “Minister Pravin Gordhan, who is a key player in both parallel inquiries [...] in which we contend he has no basis, or no business to meddle in,” says Mpofu, gives oral evidence in the Nugent commission but “refuses” to give oral evidence in this inquiry.
#TomMoyane Mpofu submits that Gordhan has proven his irrationality in giving oral evidence in the Nugent commission but not agreeing to do so in the disciplinary inquiry. Mpofu claims it is like “wearing pyjamas to work and your suit to sleep.”
#TomMoyane Advocate Heidi Barnes begins now, representing President Cyril Ramaphosa. She says, “The terms of reference are clear and entirely lawful and fair.” Barnes asks if this in reply to all three of Mpofu’s points or just the first. It’s the first, says Barnes.
#TomMoyane “You are bound to run the disciplinary inquiry in a manner that is fair and just,” Barnes tells Bham. She submits there is no basis for an assumption Bham will not do so, and “these proceedings are entirely premature.”
#TomMoyane Barnes says the terms don’t exclude oral evidence. On the matter of power, she argues Bham has no authority to determine if the terms of reference are fair, and in any case the terms insist the process be just and fair.
#TomMoyane “The power to discipline and dismiss Mr Moyane is an executive power,” says Barnes. Bham says “you make reference to the presidential power” and asks to what extent it extends. Barnes says it is important to start with what Mr Moyane is entitled to in law.
#TomMoyane “All Mr Moyane is entitled to is a decision that is fair and just,” argued Barnes for Ramaphosa. She refers to a judgement also referred to by Mpofu, which she says is still good law on the point of executive action.
#TomMoyane Bham says “what I’m concerned is the challenge” and speaks of Barnes telling him “I am a creature of the terms of reference” of this disciplinary inquiry. Barnes refers to paragraph 5.1 of the SARS Code of Conduct.
#TomMoyane takes notes as Barnes submits, and at points rests his chin on his right hand, sometimes running an index finger over his lips. He is watching Barnes carefully and turns to Mpofu now and then.
#TomMoyane Bham says “he is open to persuasion” from the employer SARS that this inquiry is necessary, with reference to the SARS Code of Conduct, although he realises that it may not have a bearing on this, different disciplinary inquiry.
#TomMoyane Barnes reads from the terms of reference and that they assert this process must be conducted as a “matter of urgency” while Barnes says this process is aligned with the LRA and the Code of Good Practice, “neither of which entitle Mr Moyane to oral evidence.”
#TomMoyane Barnes says Moyane is not entitled to oral evidence, yet the “bitter irony” is that oral evidence is not excluded. Barnes later says, “We have also referred to the charge sheet and what that provides.”
#TomMoyane “Of course the charge sheet and the terms of reference must be read together. They were submitted together. There may have been a day or two in between but they were submitted together,” says Barnes.
#TomMoyane “So, we have adopted a process that starts with the submission of written evidence,” says Barnes, adding that if there is a dispute of fact later on, witnesses may be called upon to provide oral evidence. She moves on to the second complaint.
#TomMoyane Barnes for Ramaphosa argues Gordhan is permitted to submit evidence in an affidavit. She submits that “they’ve confused authority needed to institute proceedings and the authority to give evidence” and “no authority is required” to give evidence.
#TomMoyane “So, that is the confusion that underpins this complaint,” argues Barnes. She now deals with Mpofu’s argument that there is an absent link between Ramaphosa’s “loss of confidence” and Gordhan’s submission in an affidavit.
#TomMoyane Barnes addresses the complaint on delayed confirmatory affidavits and acknowledges they were late, but argues there was no prejudice to Moyane on account of the delay.
#TomMoyane Mpofu interrupts. Bham responds and says, “When I decide this matter I will decide on the evidence I am allowed to consider.” He adds, “At the end of the day it is up to me to make a decision on the weight of the submission.”
#TomMoyane “All that you are empowered to do, chair, is to conduct this disciplinary inquiry with reference to the terms of reference,” says Barnes. She contests these arguments on a conspiracy in the timing of the Nugent commission and this disciplinary inquiry.
#TomMoyane Barnes says processes may overlap. She gives, as an example, an employee being subject to internal disciplinary process at work on allegations of fraud, as well as being subject to criminal charges.
#TomMoyane Barnes says, “We must remember, chair, that we are dealing with an unusual situation.” She notes the power to appoint is an executive power. Bham asks if the executive power could be subject to interrogation in terms of this inquiry. Barnes says not, and Moyane smiles.
#TomMoyane Proceedings are now on a break. We are set to resume at 12:45, when Mpofu will respond to submissions from Barnes.
#TomMoyane Proceedings resume again after a short break. A member of Moyane’s team tells me the charge sheet refers to allegations against Moyane related Jonas Makwakwa, the KPMG report and misleading @ParliamentofRSA.
#TomMoyane Mpofu says it is “just plain wrong” to argue Bham’s hands are tied. He submits, “We don’t want terms that don’t exclude oral evidence.” He wants terms that stipulate there will be oral evidence. Bham asks about his powers as chair.
#TomMoyane Bham says he has an option of reading the terms with the code. “In other words, it’s not binary,” says Bham. “It is certainly not binary,” says Mpofu who is now replying to argument and submissions from Barnes.
#TomMoyane “You can’t come here now and say you want to run away from the disciplinary code,” says Mpofu. He refers to Gordhan stating Moyane is bound by the @sarstax code of conduct.
#TomMoyane Mpofu describes sourcing the disciplinary code. “What I am not going to allow counsel to talk across the table,” says Bham. “I am not going to allow counsel to talk across the table and pass me, so long as I am empowered to do so.”
#TomMoyane Barnes insists there is no dispute that this is the disciplinary code, and “we can move on.” Barnes clarifies and says, “So, that is the end of the issue and we can move on.”
#TomMoyane Mpofu says “what we are trying for” is a fair and just process in terms of disciplinary action against Moyane. “Why is urgency in this inquiry exclude oral evidence?” asks Mpofu when oral evidence was allowed in the Nugent commission.
#TomMoyane This code prescribes cross examination and oral evidence, submits Mpofu, referring to the @sarstax code of conduct and its terms for disciplinary action. He says Moyane and his employer, SARS, agreed to terms allowing for oral evidence.
#TomMoyane “Then you have no choice, quite frankly, but to apply the consensus agreed to by both parties,” Mpofu tells Bham arguing for oral evidence to be part of the disciplinary inquiry.
#TomMoyane “I accept that there was a bit of a retreat,” says Mpofu referring to a letter from Ramaphosa’s counsel about oral evidence, which expressed it was not disallowed. He says this differs from the terms of reference.
#TomMoyane “That one is both disingenuous and disrespectful, quite frankly,” says Mpofu on submission about Bham accepting late confirmatory affidavits from Ramaphosa’s team. “We made that complaint on the 28th of June when those affidavits were meant to be with us on the 22nd.”
#TomMoyane Mpofu says “it is not a small thing that can just be brushed off” and Ramaphosa’s counsel has displayed “arrogance” in its submissions on late confirmatory affidavits.
#TomMoyane Mpofu says the “non-production of this code” of conduct “is something that is suspicious” precisely because it allows for oral evidence. He then holds up the terms of reference and code of conduct and says Bham must decide between them. Bham says it may not be binary.
#TomMoyane “Fairness is a broad thing,” says Mpofu when dealing with the disciplinary inquiry and the Nugent inquiry. He refers to a judgement by Judge [Albie] Sachs on fairness, reputation and reputational damage.
#TomMoyane Mpofu is referring to the Sachs statements and says “you cannot have Mr Moyane vilified by the Gordhans of the world” at the SARS inquiry while the disciplinary inquiry is taking place. Mpofu highlights civility, ubuntu and says “it is crass not to do that”.
#TomMoyane On the tax inquiry, Mpofu says, “Even if that process is prim and proper with no blot [...] that is still unfair for it to continue simultaneously.” He says, “The point is both of them running simultaneously is prejudicial to Mr Moyane.”
#TomMoyane Mpofu says Bham is empowered by the terms of reference to assess if the two processes running concurrently is fair, and “it is your power to ensure this inquiry is run of fair basis.”
#TomMoyane Bham summarises what he understands to be Mpofu’s argument and Bham’s remit. They seem to understand one another. Next, Bham asks what he does presuming he proceeds with the disciplinary inquiry.
#TomMoyane Mpofu refers to a letter Moyane’s team sent to Ramaphosa on 2 July 2018. He says Ramaphosa’s reply was that he would wait for Bham’s report on this disciplinary inquiry, consider it and then get back to Moyane’s team.
#TomMotane Mpofu concludes. Barnes says she did not concede the “SARS code was applicable” and that Ramaphosa’s power in appointing this inquiry eclipses that. She adds “there is no reference to exceptional circumstances” in a specific paragraph. Mpofu retorts, and Bham steps in.
#TomMoyane Bham thanks both parties. He says, “I will get down to it as soon as possible.” He hopes to get to this next weekend, as he is in arbitration this week, he understands the urgency and hopes to make a ruling by the middle of the following week at the latest.
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