Judge Robert Nugent has ruled 5-0 against advocate Dali Mpofu, who on Friday applied for the Commission of Inquiry into Tax Administration and Governance at Sars to be suspended until the disciplinary hearing into Sars commissioner Tom Moyane is completed.
Nugent has:
- Refused to suspend or discontinue the commission.
- Declined Mpofu's submission that Professor Michael Katz no longer sit as an assistant to the commission.
- Declined the demand that the evidence that has been put to the commission be "expunged" from the record.
- Refused to accede to Mpofu's demand that the commission not run a parallel process to the disciplinary inquiry into Moyane's tenure at Sars.
- Refused Mpofu's application for the commission to cover the legal costs of his application on Friday, June 29.
Mpofu on Friday threatened to interdict the commission, which began sitting last week and heard from 11 witnesses, most of whom painted a picture of a reign of terror by Moyane and a declining ability by Sars to efficiently collect revenue.
Revenues are down by R50-billion for the year and R130-billion over the four years of Moyane's tenure. This has also been a period of low economic growth and the commission's work is to determine what is cyclical and what was caused by human error and mismanagement.
Nugent gave Mpofu and Moyane's plans to torpedo the commission a bloody nose on Monday as he called their submissions to him a "disgrace, no less a disgrace than counsel's conduct".
Nugent was referring to Mpofu's allegations that the commission was partial, that the evidence it heard was "grossly unfair" as well as his resuscitating the idea that a "rogue unit" operated at Sars even though that narrative has been discredited.
"This commission was established by the president. It cannot dissolve itself. It was instructed by law to make inquiries and it must continue to do that," said Nugent.
President Cyril Ramaphosa had appointed Katz and he had the power to retain or fire him, said Nugent.
On Mpofu's request that the evidence heard last week be expunged, the judge said: "Evidence cannot be made to go away by a process of expungement. Inadmissible evidence may be expunged from the record in a court of law, but the same is not to be said of a commission of inquiry. The law does not require it to ignore evidence."
Nugent added, "You can't make evidence disappear."
On Katz, who is sitting as an expert assistant to the commission, Nugent said he could not axe him or ask Katz, an authority on tax law, to recuse himself and added that "he is not conflicted at all, he is doing precisely what the president asked him".
Nugent objected to Mpofu's insults against the commission's evidence leaders (lawyers who act on behalf of the commission) Carol Steinberg and Lunga Siyo. He said they had acted in an exemplary fashion after Mpofu accused them of bias and timidity. Nugent explained that in an inquisitorial process, the evidence did not have to be led in an aggressive fashion.
President Cyril Ramaphosa had appointed Katz and he had the power to retain or fire him, said Nugent, who revealed that Moyane had sought over the weekend to change his submission on Katz from a request that he be fired to a request for his recusal.
In the first four days of the hearing before the Nugent commission of inquiry last week, 11 witnesses gave evidence of how Moyane's era had resulted in the decline in performance of Sars. At least six executives said they had been marginalised, insulted, taunted and/or constructively dismissed by Moyane and his former chief operations officer Jonas Makwakwa while at Sars.
Moyane's advocate, Mpofu, said he has not yet seen the findings by Nugent and would be advised by his client on the next steps. Moyane says he was the first commissioner to deliver R1-trillion in taxes, that he took the tax to GDP levels to the highest levels ever and that the downturn in revenue can be laid at the door of a weaker economy.