The chairperson of the commission of inquiry into state capture, Deputy Chief Justice Raymond Zondo, has reserved his decision on sacked SA Revenue Service (Sars) commissioner Tom Moyane’s application to cross-examine Public Enterprises Minister Pravin Gordhan.
“I’m going to reflect on the arguments presented and revert to the parties,” Zondo said ahead of the tea break adjournment on Wednesday.
Zondo had previously dismissed Moyane’s application to cross-examine Gordhan and subsequently requested both sides to submit clarificatory affidavits.
Ahead of arguments for Moyane’s legal representative, advocate Dali Mpofu, and Gordhan’s counsel, advocate Mitchell Le Roux, Zondo explained that he had sought clarification from the minister on whether he was saying that when Moyane brought charges against him, he had acted with malice.
In 2015, Moyane brought charges against Gordhan relating to the early retirement payout for the tax authority’s former deputy commissioner, Ivan Pillay. The case opened by Moyane was reportedly also used in the investigation of the so-called rogue unit at Sars.
The charges were later withdrawn by the national prosecuting authority (NPA).
Zondo said had Gordhan maintained in his clarificatory affidavit that he did not know what was on Moyane’s mind when he brought the charges against him, the hearing on Wednesday would have not been necessary.
Zondo said, however, in consideration that Gordhan stated in his clarificatory affidavit that Moyane had abused the legal process in pursuit of advancing the state capture agenda, he would have to consider the application and if all requirements were met, he was inclined to grant leave for Moyane to cross-examine the minister.
“My prima facie view is that in the context of this commission, if you say someone did things to further state capture, that is quite a serious allegation,” Zondo said ahead of arguments.
Part of Mpofu’s argument was that Gordhan had stated clearly in his clarificatory affidavit that he was of the belief that when Moyane brought charges against him he was wholly or partly motivated by the intent of pursuing state capture and in the context of the commission’s terms of reference, leave for Moyane to cross-examine the minister should be granted.
Mpofu also argued that since Gordhan had implicated Moyane in advancing state capture, the former Sars commissioner should be given a fair opportunity to clear his name by cross-examining the minister.
Le Roux noted that Gordhan had maintained that he supported the commission’s work.
Le Roux said Gordhan’s position had been consistent that he did not know what was on Moyane’s mind when he brought the charges against him but that those charges were used by the Hawks and the NPA to advance a political campaign against him, which would then pressure him to resign as the minister of finance at the time.
She said all Gordhan had maintained was that in light of the findings of the Nugent commission and the “acrimonious” relationship between him and Moyane during the latter’s tenure at Sars, he was now of the personal belief that the former Sars commissioner was part of pursuing state capture.
Zondo suggested that Gordhan should put forward another affidavit providing information suggesting that Moyane was advancing state capture, which would be responded to by the former Sars commissioner.
However, Le Roux said considering that Moyane had been mentioned during testimony at the commission regarding the Waterkloof landing, Bosasa and allegations of bribery during his tenure at correctional services, it was time for the former Sars commissioner to take the witness stand at the state capture inquiry.
The head of the commission’s legal team, advocate Paul Pretorius, said there seemed to be confusion on what Gordhan said about Moyane, adding that the purpose of grant leave to cross-examine would give an opportunity to provide clarification.
The commission continues to hear testimony from crime intelligence whistleblower Colonel Dhanajaya Naidoo: