Moyane is facing two processes - Judge Nugent’s commission and an internal disciplinary inquiry chaired by advocate Azhar Bham, SC - that have been appointed to establish his fitness to lead the tax collecting body.
Judge Nugent this week, in the middle of the inquiry, released a preliminary draft report to Ramaphosa recommending Moyane’s immediate removal and the appointment of his replacement.
Moyane had earlier this month approached the Constitutional Court to suspend the Nugent Commission until the conclusion of his disciplinary hearing. Mngoma said Moyane was justified in not allowing himself to be subjected to concurrent processes.
“What if the Constitutional Court rules in favour of Moyane?
“It is going to be a problem if the president does not apply his mind diligently before he accepts the recommendations of the judge. In my view the Constitutional Court can sort this matter out,” he said.
Judge Nugent said Ramaphosa should “take steps without delay to remove the current commissioner”. He said Moyane’s replacement should be appointed through “an open and transparent process, but without compromising the urgency of the appointment”.
However, Mngoma said that although Sars’s integrity should be restored, Ramaphosa risked making legal and labour mistakes if he rushed to act on the recommendations.
“Since the president is also bound by the Constitution and law he cannot be motivated by speed in complying with the recommendation. Remember that he is dealing with a person who is still an employee. This person is protected by labour law, which needs to be respected. (The recommendation) does not necessarily mean that due process should be flouted, because that would complicate matters as Moyane could argue that he had been unfairly removed,” he said.
Ramaphosa suspended Moyane after he was charged with misconduct, which includes claims that Sars paid a tax return of more than R70million to a Gupta-linked company while withholding returns of more R70m due to deserving taxpayers since 2004 when he took over the office.
In a statement sent to Independent Media yesterday, Moyane’s lawyer, Eric Mabuza, said Ramaphosa had given Moyane until October 26 to make representation on whether or not Judge Nugent’s recommendation should be implemented.
“However, we do not believe the president will join in this irrational and illogical attempt to fire the commissioner of Sars unlawfully and through the back door. It is completely illogical and unheard of.
“Bham has recently ruled that the disciplinary process must be stayed or postponed until the ongoing constitutional challenge has been finalised. We hope Judge Nugent will also usurp that correct finding of Bham,” said Mabuza.
Constitutional law expert Professor Shadrack Gutto concurred with Mngoma. “Since this is a recommendation, unlike in a court of law, it cannot be followed immediately. Moyane can still take the recommendation for a review in a court of law,” he said.