Daily Maverick 13 March 2019
State Capture Commission was urged not to allow itself to be used as another forum to ‘console’, ‘rehabilitate’ former SARS Commissioner Tom Moyane in his bid to cross-examine Cabinet Minister, Pravin Gordhan who had implicated him before the Commission.
The controversial former tax boss, Tom Moyane, will have have to wait to hear whether deputy chief justice Raymond Zondo grants him permission to cross examine Public Enterprises Minister, Pravin Gordhan.
A two-hour long verbal battle unfolded at the State Capture Commission on Wednesday when counsel for the two presented strongly worded argument for why and why not Moyane should be permitted to cross-examine the former finance minister.
Moyane was fired by President Cyril Ramaphosa in November, on the recommendation of the SARS Commission of Inquiry, chaired by justice Robert Nugent, that had investigated governance issues at the tax agency.
His application for leave to cross-examine Gordhan has been described as another bid by him to resuscitate the “rogue unit” narrative while attempting to traverse, again, his removal as SARS Commissioner despite a string of recent set-backs in court.
Gordhan has opposed the application on various grounds, including that it is a “poorly disguised” attempt to use the State Capture Commission as a platform to advance a political campaign against him by the EFF.
“The Commission cannot afford to become the next forum where he seeks to ventilate his personal and political objections regarding his termination, against me, Justice Nugent or President Ramaphosa,” Gordhan said in an affidavit submitted.
Moyane chose to reject a multi-million rand offer to walk away and then to embark on a “litigious campaign” to challenge his removal, Gordhan said.
The Nugent Commission had found that Moyane’s removal was necessary so that the rehabilitation of SARS from Moyane’s calamitous tenure could begin, Gordhan said in an affidavit.
“This Commission cannot be asked to re-do the work of the Nugent Commission.”
Moyane’s senior counsel, Adv Dali Mpofu, said while accepting that implicated parties do not have an automatic right to cross-examine a witness, it was important for Moyane to be allowed to do this because he was indeed implicated by Gordhan and, because his version is relevant to the terms of the Commission.
“This is not a Gupta Commission but one into allegations of corruption and fraud in the public sector (more widely). Else, why would we have had to listen to weeks of Agrizzi testimony?” Mpofu stated.
Given the broad mandate of the State Capture Commission, if, based on Moyane’s suggestion, Gordhan was involved in unlawful activity around the creation of the so-called rogue unit, that would speak to the creation of a parallel state mechanism to spy on people, making it relevant to the terms of the Zondo inquiry.
He said Moyane was not sitting at home watching Gordhan implicate him on TV. “We were invited by this Commission, because he is an implicated party,” Mpofu said.
Justice Zondo intervened briefly, saying his reading of the rules is that if you’re bringing an application to cross examine a witness, it is because you take the view that you are implicated and then, in making such an application, Moyane would have be precise in terms of what he believes he is implicated on and to present the Commission with his version to those allegations.
In this regard, Zondo said, Moyane would have be precise in terms of what he believes he is implicated in and to present the Commission with his version to those allegations.
Zondo said he could not easily find Moyane’s version in his application.
Mpofu said his client was implicated on a debt-collection tender – this actually emerged through litigation brought by a losing bidder – and for allegedly having lied to Parliament about his role in the deal.
“A complete, blanket denial of cross-examination is just unfathomable,” Mpofu said.
Gordhan has nothing to hide from the Commission but is opposing Moyane’s application because it is seeking to air personal grievances which do not fall within the ambit of the State Capture inquiry, said his advocate, Michelle Le Roux.
This application is not a “proper one,” and is an “abuse” of process, she said.
And, in order for him to succeed in this, Moyane would have to put up a version that can be tested and such was simply not in hand.
Most of the issues raised by Moyane in this application are related to SARS and they have all been covered during the Nugent Commission.
The debt-collection contract was covered at the Nugent Commission which found Moyane had been untruthful.
There was no point in cross-examining Gordhan on this issue, he was not there. Moyane instead ought to rely on public records from either court or Parliament in his quest, Le Roux said.
Key among the various “identical” issues that Moyane wants to introduce at the Zondo Commission, Le Roux said, was Gordhan’s involvement in the establishment of the so called rogue unit.
Justice Nugent could see no reason why the High Risk Investigation Unit (the rogue unit) was unlawful and why Gordhan should be criticised for his role.
Justice Nugent, in fact, recommended it be re-established, to combat illicit trade, and that is currently happening, Le Roux said.
She highlighted the use of language in Moyane’s application, drawing on words like racism, hate, hostility, grudges and vendettas.
“Is it really necessary and in the best interest of the State Capture Commission to entertain Moyane’s personal feelings, something that does not fall within the terms of reference of this Commission,” she asked.
This, Le Roux said, would not take the work of the Zondo Commission any further.
“Time and money should not be spent on consoling Moyane.”
Finally, Moyane’s contention was that the battle between him and Gordhan was political, that he had somehow been part of the State Capture project merely because was made a minister of finance, twice, under former president Jacob Zuma.
Said Le Roux: “We know State Capture targeted National Treasury so this now somehow turns him into some central architect of capture?
“It is very easy to throw mud, and hope something sticks.
“We understand the political campaign out there against Gordhan but the question is does it help this Commission to entertain these outlandish and baseless claims about him.”
The fact is, Moyane is simply “forum shopping” and hopes that the Zondo Commission will buy what others have not, she said.
The Constitutional Court has twice rejected Moyane’s efforts and so too has the High Court. His use of language, in part, she said, was “invective and vile”.
Justice Zondo will communicate his decision in due course.
The Commission resumes with testimony by Piers Marsden, the former business rescue practitioner for Optimum Coal.