Retired judge Robert Nugent says his commission will not be deterred by “sideshows” in the face of criticism of his recommendation that suspended Sars commissioner Tom Moyane be axed by the embattled tax boss’s attorney.
Responding to questions received by the commission from journalists on whether Nugent had overstepped his mark in the call for Moyane’s head, Nugent said his recommendation was not a call on a “disciplinary matter”, but was one of “management” of Sars. The judge had submitted an interim report to President Cyril Ramaphosa in which he recommended Moyane’s removal so as to stabilise Sars.
Nugent’s terms of reference are clearly defined and are directly aimed at determining whether the tax agency was being optimally managed to deliver on its mandate. In his interim report, released by Ramaphosa this week, Nugent speaks directly to this question. He highlights how the management of Sars had deteriorated; how its relationship with other state institutions, such as the National Treasury, the auditor-general and the financial intelligence centre, had broken down; and how its international standing had been eroded under Moyane’s watch.
This is in addition to the atmosphere of fear, suspicion and intimidation at Sars, which prevailed during Moyane’s tenure, and the manner in which his restructuring had neutralised the functioning of Sars to a point where it is currently “treading water”.
We are not going to be diverted by anything ... We have got a course and we will act on it unwaveringly ... the side things [Moyane’s objections] have become banal after what we have heard here
— Retired judge Robert Nugent
However, Moyane’s lawyer, Eric Mabuza, has argued that it is not within Nugent’s mandate to pronounce on Moyane’s fate. Mabuza said Nugent had stepped onto the terrain of advocate Azhar Bham, who was chairing a separate disciplinary process against Moyane, which, too, was centred on very specific charges.
Nugent responded to this at the inquiry on Thursday, after receiving questions from journalists. “From the outset ... I said I will keep away from those issues so that the disciplinary inquiry is not inconvenienced ... and I have done so.”
He has not touched on any matter relating to the charges Moyane faces in his disciplinary inquiry, which includes Moyane’s handling of a financial intelligence centre report into dodgy transactions by former Sars executive Jonas Makwakwa, and allegations that Moyane ordered a Sars staffer to lie to avoid being interviewed by KPMG.
“This is a matter of management ... we came to the conclusion that, whatever those transgressions are, is irrelevant, this [finding] has got to do with management,” Nugent said. The judge added that at Moyane’s level, if the president lost faith in him, he should be “entitled” to remove him.
“We say remove, because the main issue we are concerned with is management [of Sars],” Nugent said. “We are not going to be diverted by anything ... only if a court says we must stop, we will stop. We have got a course and we will act on it unwaveringly ... the side things [Moyane’s objections] have become banal after what we have heard here.”
Dozens of witnesses have given evidence to the inquiry, publicly or confidentially, on the ruinous effect of Moyane’s reign at the tax agency to the commission of inquiry.
Nugent said that the public hearings were not the only time the commission received and gathered evidence. He said the process had begun the day after the establishment of the commission was made legal, with a Saturday morning interview he had conducted with Sars acting commissioner Mark Kingon.
The commission has been working hard since then to deliver on Ramaphosa’s mandate.
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