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The saga surrounding the fate of suspended SARS commissioner Tom Moyane has become the stuff of a legal soap opera.
In March of this year, President Cyril Ramaphosa suspended Moyane and shortly thereafter Mark Kingon was appointed as acting commissioner. More than six months have passed and Moyane has clung on.
As he has recently applied to the Constitutional Court to set aside the institution of the Nugent commission of inquiry into SARS and the Bham disciplinary inquiry into his continued position at SARS, it is likely that the process has not even reached the halfway mark.
This is a most unsatisfactory state of affairs. The challenge of tax collection has only become more challenging in the light of declining economic growth and the imperative for an economic stimulus. Moyane's Trump-like claim that he was the best commissioner the country has had the fortune to have had notwithstanding, there is a library of evidence which has been presented to the Nugent commission which compellingly shows that SARS was degraded under the Moyane regime.
Agreed, tax collection increased to over R1 trillion during his tenure but that has to be placed in context. Increasing rates and inflation, which, in turn pushes taxpayers into higher tax brackets had much to do with this figure. Besides, over the past few years SARS has not made budget by significant margins. Not all of this can be explained away by a decline in the growth rate.
The evidence from senior members of SARS, past and present, compels a conclusion that new management is urgently required to restore health to the institution which, admittedly, has begun the road to recovery under Kingon. But he is an acting commissioner and the institution needs certainty as to who will permanently run it.
A turn-around is critical to the future of SARS and hence to the ability of the country to fund a stimulus to the benefit of millions who have no work.
The urgency of the matter and the core role played by SARS compels decisive action. And the absence thereof, indeed the existence of the opposite, where Moyane has led the president in a merry dance, is inexplicable.
A decade ago then president Thabo Mbeki fired the Director General of National Intelligence Billy Masetlha. This action led to litigation that ended in the Constitutional Court. Of fundamental importance to the Moyane imbroglio is the following passage from the Constitutional Court:
"It is clear that the Constitution and the legislative scheme give the President a special power to appoint and that it will be only reviewable on narrow grounds and constitutes executive action and not administrative action. The power to dismiss – being a corollary of the power to appoint – is similarly executive action that does not constitute administrative action, particularly in this special category of appointments. It would not be appropriate to constrain executive power to requirements of procedural fairness, which is a cardinal feature in reviewing administrative action. These powers to appoint and to dismiss are conferred specially upon the President for the effective business of government and, in this particular case, for the effective pursuit of national security… Procedural fairness is not a requirement. The authority in section 85(2)(e) of the Constitution is conferred in order to provide room for the President to fulfil executive functions and should not be constrained any more than through the principle of legality and rationality."
How, you may ask, is the Moyane case deserving of different treatment? SARS is surely as critical an institution for the governance of the country as National Intelligence. The evidence which would justify a rational decision-maker to get rid of him is more compelling than Mbeki had in respect of Masetlha and the precedent is clear.
In addition, the court in Masetlha distinguished between the contract of employment over which further disputes could take place regarding compensation and dismissal from an office. Why the president has not dismissed Moyane, leaving it open to the latter to still claim compensation for loss of office, has never been explained to the public.
Agreed that, if Moyane was dismissed, he would rush to court but he has already done so; hence the question: why not fire him, appoint a new commissioner, bring stability to SARS and meet him in court armed with the Masetlha judgment and the evidence obtained by the Nugent commission?
Of course, the Moyane case is not the only one that has arisen in relation to SARS. Judge Frank Kroon should, at the very least, be the subject of an inquiry by the Judicial Service Commission (JSC) as to how he came to give judicial approval to a report that ruined the lives of a number of diligent public officials. And that is hardly all that is required; accounting and law firms who were involved as well as members of the Bar who produced what is a manifestly hopelessly incorrect report should be the subject of further inquiry as well.
In summary, what seems to have been done to reconstitute the principles of accountability and transparency in this case has been too little and maybe too late.
- Serjeant at the Bar is a senior legal practitioner with a special interest in constitutional law.
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