Johannesburg - Even though no-one has an absolute right to cross-examine witnesses at the state capture commission of inquiry, ex-SARS boss Tom Moyane has a right to being treated fairly by the commission, Advocate Dali Mpofu argued in a fresh bid to be granted permission to quiz Public Enterprises Minister Pravin Gordhan.
"We accept unreservedly chairperson to no right to cross-examine, but there must be fairness. We insist on our right to fairness... one cannot come here and say Mr Moyane advanced state capture but that person cannot be cross-examined," said Mpofu.
"The notion that there are people beyond cross-examination must be dispelled. This commission has shown that the so-called angels [former finance minister Nhlanhla] Nene, Bosasa matters and [suspended journalist] Munusamy were not as pure as snow."
Moyane was denied leave to quiz Gordhan in May in his first bid before Deputy Chief Justice Raymond Zondo. Zondo said Moyane failed to demonstrate why it was necessary and why it was in the best interest of the commission to grant him the leave.
In the same ruling, Zondo reserved his decision on allegations that Moyane acted maliciously when he laid criminal charges against Gordhan back in 2015. Gordhan was finance minister at the time.
Mpofu said Gordhan's reliance on the finding of retired Judge Robert Nugent against Moyane were unfounded and that consistently arguing that Nugent found that the so-called rogue unit established at the SA Revenue Services (SARS) was illegal -- was false.
"Moyane acted [laying charges against Gordhan] at that time based on reports -- including the Sikhakhane report and that of the Inspector General of Intelligence. The Nugent report used opportunistically now didn't exist at that time... and there's never been a finding on lawfulness of rogue unit by Judge Nugent," said Mpofu.
"Judge Nugent says there might be lawfulness or not regarding the rogue unit and that should be bought to authorities...meaning his comm has nothing to do with it. so how can he [Gordhan] then say the rogue unit was lawful...that was a lie from Pravin Gordhan."
Advocate Michelle Le Roux, arguing on behalf of Gordhan, said Moyane's application was an attempt to undo Zondo's first ruling. Her client still faced active political campaigns to discredit him, she added.
"The point chairperson is that Minister Gordhan has been consistent. He always said he didn't know what was in Mr Moyane's head when he went and lay criminal charges," Le Roux said.
"He says he understands the 27 questions [to Gordhan from the Directorate for Priority Crime Investigation, known as the Hawks] as a political campaign against him to get him to resign as then finance minister. Law enforcement was part of that campaign as seen through the Hawks' 27 questions demanding they be answered by 2 March 2017 and the National Prosecuting Authority."
Zondo asked Le Roux: "Are you able to say Minister Gordhan is not saying that in laying charges against him, Mr Moyane acted maliciously or in furtherance of state capture?"
Le Roux responded saying, "What Minister Gordhan said before this commission and throughout his evidence is that Mr Moyane's dismantling of SARS and resisting my authority appears to serve the state capture agenda and the Nugent commission has found that was so. With respect to the criminal charges, Mr Gordhan has only said I do not know what was going on in his head and says he doesn't believe it will help the commission to try [to] make a finding on that."
"It is time for Mr Moyane to tell you chairperson and the country why what he did was not part state capture because he never went to Nugent to state his case...but now he wants to come to this commission to try [to] use old narratives to try discredit my client through a political campaign," she said.
"There is a version by Mr Moyane that would clarify issues around his time at SARS, him as commissioner at Correctional Services where he was mentioned for receiving Bosasa payments...there is a version for Mr Moyane that would assist this commission, and it is not by cross-examining Minister Gordhan on his beliefs based on the Nugent commission."
Le Roux said Gordhan agreed that no one was above scrutiny and would oblige and to give evidence again should the commission request that.
Zondo reserved his ruling, adding that he wouldn't take Nugent commission outcome as it is, but would have to make up his own mind after consideration of all arguments.