Former South African Revenue Service commissioner Tom Moyane. Picture: Simphiwe Mbokazi  African News Agency (ANA)
Former South African Revenue Service commissioner Tom Moyane. Picture: Simphiwe Mbokazi African News Agency (ANA)

#StateCaptureInquiry: Moyane's application to cross-examine Gordhan dismissed

By Zintle Mahlati Time of article published Apr 16, 2019

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Johannesburg - Deputy chief justice Raymond Zondo has dealt a blow to former Sars commissioner Tom Moyane’s battle with Public Enterprises Minister Pravin Gordhan by dismissing his application to cross-examine. 

“In regard to all other issues the applicant's application falls to be dismissed,” said Zondo.  

Zondo read out his ruling regarding Moyane’s application to cross-examine Gordhan on Tuesday and detailed why he chose not to grant Moyane permission to question Gordhan.

Gordhan had appeared at the inquiry last year and spoke about state capture and his battle with Moyane while he was finance minister. He implicated Moyane in three instances. 

Zondo began by reading the commission’s rules which guide his decision on whether to allow for cross-examination. The rules do automatically entitle an implicated individual to cross-examine a witness. The discretion falls on Zondo after he has considered whether he will allow for cross-examination.

A set of ground rules need to be checked in an applicant’s application before he or she could be granted permission to cross-examine. The ultimate test is whether granting permission is in the best interest of the commission’s work and mandate.

Zondo pointed out that Moyane’s application came across as if he felt he was entitled to cross-examine Gordhan. The chairperson said Moyane failed to point out where in Gordhan’s statement he has been implicated. 

“The applicant's statement, in this case, does not at all respond to certain important parts of Mr Gordhan’s statement which implicates him or does not respond adequately to Mr Gordhan’s statement or evidence. One example of this is where Mr Gordhan implicates the applicant in blatant refusal to account to him as minister of finance on critical issues regarding Sars. Mr Gordhan even accuses the applicant of refusing to acknowledge his authority and Mr Gordhan suggests that this attitude appears to be part of the campaign to force him to resign as minister of finance. The applicant does not respond to these allegations in Mr Gordhan’s statement,” said Zondo. 

“Rule 3.4 requires that the statement of an applicant should make it clear which part of the witness's statement is disputed or denied and the ground on which those parts are disputed or denied. Because the applicant’s affidavits do not identify the parts of Mr Gordhan’s statement that denied or disputed it cannot be said it complies with that part of rule 3.4,” the chairperson said. 

Moyane also failed to detail why granting him permission would be in the best interests of the commission. 

“Neither in his supplementary affidavit or his responding affidavit did the applicant deal with the issue of why it can be said that granting him leave to cross-examine Mr Gordhan is necessary and in the best interests of the function of the commission. I have read his affidavits carefully and I am satisfied that he does not address this important issue,” said Zondo. 

Zondo detailed various parts of Moyane’s affidavit where he made outlandish comments about Gordhan. The various areas Moyane wanted to cross-examine Gordhan was broken down into themes which include the rogue unit, racism allegations against Gordhan and allegations that he lied about his involvement in irregularly awarding a tender contract.  

Zondo dismissed all of these themes by generally highlighting the issue of relevance and Moyane’s failure to point out if the themes point to the fact that he had been implicated in Gordhan’s evidence.  

“When one goes to paragraph six where the applicant does list his own complaints of alleged improper conduct against Mr Gordhan, they are not instances where Mr Gordhan implicates the applicant. By the applicant's admission, the issues are not the ones raised by Mr Gordhan in his statement, therefore he cannot apply to cross-examine Mr Gordhan on issues that are not raised in Mr Gordhan’s statement or evidence,” Zondo said. 

“Theme two regarding the anti-Moyane bias and hostility, the applicants states that he will seek to demonstrate that levels of hostility and anger by Mr Gordhan towards him are sufficient to justify him as an impartial commentator on any issue he is alleged to be involved. He (Moyane) does not articulate where Mr Gordhan implicates him in wrongdoing,” said Zondo.

Zondo said the only area where he still had questions, was regarding Gordhan’s possible assertions that in Moyane opening a criminal case against him he had done so with a  malicious intention. The chairperson has asked for both Gordhan and Moyane’s legal teams to submit documents regarding this aspect.  

The inquiry continues with the testimony of former Ipid boss Robert McBride.


* Article has been updated

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