The Honourable President of the Republic 1st Floor

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of South Africa
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Direct e-mail: eric@mabuzas.co.za

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angeline@presidency.gov.za
sibongile@presidency.gov.za

Your Ref:
Our Ref: Mr. ET Mabuza
Date: Tuesday, October 30, 2018

Dear Hon President,

REPRESENTATIONS ON THE RECOMMENDATIONS OF THE SARS COMMISSION

We refer to your letter dated 12 October 2018 which attached the so-called Interim Report
of the SARS Commission by the Commissioner, Mr Robert Nugent and purporting to be
the unanimous view of Mr Nugent and his three assistants Mr Katz, Advocate Masilo and
Mr Kahla.

In the said letter the President indicated that he was applying his own mind to the
recommendation made in the Interim Report that Commissioner Moyane be summarily
“removed from office” and that the President should summarily appoint a “new
Commissioner”. You also invited Commissioner Moyane to make submissions thereon.
He has in turn instructed us to assist him. These are then the
submissions/representations.

1. We state upfront and categorically that the recommendations of Mr Nugent and his
assistants must be rejected and cannot possibly be implemented following any
proper application of the mind by any reasonable President appointed in terms of

Eric T Mabuza B.Proc (Unin) LLB (Wits)

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the Constitution of the Republic of South Africa. The grounds for the proposed
rejection of the said recommendations include the fact that they:

1.1. fall outside the Terms of Reference of the SARS Commission and are
accordingly ultra vires and irrational;

1.2. are also irrational in the sense of being illogical and self-contradictory;

1.3. are unreasonable in the circumstances;

1.4. are unfair in the constitutional sense;

1.5. are tainted by bias; and

1.6. constitute a thinly veiled-attempt to campaign for the permanent

appointment of Mr Mark Kingon who is the Acting Commissioner of SARS.

Irrationality/ Ultra Vires

2. The Terms of Reference of the SARS Commission do not include employment

issues of individuals and specifically exclude the employment or dismissal of
Commissioner Moyane which the President consciously delegated to the
Disciplinary Inquiry chaired by Advocate Azhar Bham SC. In the Disciplinary
Inquiry the President specifically reserved his right to add new grounds upon which
Commissioner Moyane could be removed from office. The President could not
have contemplated that the removal from office would emanate from a separate
process subsequently approved by the very same President. Such would be an
extreme absurdity.

3. The Disciplinary Inquiry is on-going. Mr Nugent and his assistants have therefore
exceeded their delegated authority and unlawfully encroached the terrain of the
Disciplinary Inquiry, thereby undermining both the President and Adv Bham SC
and usurping their functions.
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4. The statement contained at paragraph 4 of the report that the report does not deal
with disciplinary issues but management issues is legally unsustainable and in the
circumstances constitutes indecipherable gobbledygook.

Unreasonableness

5. The content and status of the “Interim” Report is unclear and confused. It is
continuously shifting depending on the levels of shock understandably expressed
in the public domain as to its draconian effect. Most recently Mr Nugent has
indicated that the “interim” report is actually “final” when it comes to its views on
Mr Moyane and the need to replace him with a “new Commissioner.”

6. The SARS Commission will therefore necessarily have to close its eyes and ears
to the possible presentation of any controverting evidence by Mr Moyane or any
person who shares the view that he might be innocent, fit and proper and/or
wrongly accused by the previous witnesses, for whatever reason.

7. Either way the position of Mr Nugent is unsustainable at the level of logicality: If

the report is interim then it is premature. If it is final then it is draconian and unduly
oppressive.

Unfairness and Bias

8. Needless to say the recommendations have been made without affording Mr

Moyane the most basic right to fairness namely audi alteram partem and the right
to confront his accusers which is given even to the most vile mass murderers, serial
rapists, etc.

9. The reasons for Mr Moyane’s attitude towards the Commission are well-known to
Mr Nugent and to the President. They include the continued participation of clearly
biased individuals such as Mr Katz due to his relationship with the President and
Mr Nugent who has displayed his lack of impartiality on countless occasions now.
In any event these are the issues which have been placed before the Constitutional
Court for speedy determination.
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10. The SARS Commission is also clearly in pursuance of a long-predetermined

outcome, a typical case of manifest bias.

Distortion of facts

11. The report is based on findings which are based on consistent and deliberate
distortion of facts, evidence and even objectively verifiable data such as revenue
collection during Mr Moyane’s tenure when compared to all his predecessors.

12. Examples of this are too numerous to mention here suffice to say that the entire
report, its tone and choice of language, is littered with misstatements, hyperbole
and face value acceptance of highly contestable “evidence” from, inter alios, highly
questionable and prejudiced sources.

13. The rights of Commissioner Moyane to give a blow by blow explanation of this
phenomenon are strictly reserved. Suffice to say that, to any neutral reader of the
report, the facts speak for themselves: res ipsa loquitur.

Kingon campaign

14. Again, to any neutral and reasonable reader, it is clear that Mr Nugent is hellbent
on portraying Mr Mark Kingon, the Acting Commissioner as an angel juxtaposed
with the portrayal of Mr Moyane as the devil incarnate. According to this narrative
Mr Kingon, “has taken admirable steps to correct immediate concerns” and he
need to be spared from burdensome “uncertainty “of his acting status. At the same
time Mr Moyane “remains in the shadows”, is “intent on derailing the Commission”,
his employment was a “calamity” which brought “tragic consequences” to all and
sundry, destroyed the heavenly “higher purpose” introduced by Pravin Gordhan
and “compromised revenue collection “ by acting on “no more than a newspaper
report” of a non-existent and imaginary “rogue unit” and his response to media
reports, many of which (Nugent) found to be “true” was to “muzzle and intimidate
the media through costly litigation on spurious grounds.” The list of totally
unfounded accusations and insults goes on and on.
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15. The motive for the above is clearly a biased and prejudiced thinly-veiled attempt to
campaign for the dismissal of the “calamitous” Mr Moyane and his replacement by
the “admirable” Mr Kingon. In the relevant factual and historical context such
behaviour can only be described as deplorable and backward.

16. It is particularly remarkable that these remarks of Mr Nugent were made even
before Mr Kingon was called to give evidence to the Commission. When Mr Kingon
was subsequently called to the stage, it would have been hardly expected of Mr
Nugent to disagree with anything which the “admirable” Mr Kingon to which Mr
Nugent was already self-repeatedly “indebted” said.

17. Mr Kingon also notably confirmed the existence of the “imaginary rogue unit” “may
have existed” but “we need to move on.” This is in stark contrast to what Mr Nugent
said, namely:

“I have not yet found why the creation and existence of the unit was said to
have been unlawful, which is how it was consistently and uncritically
depicted. I am supported in that by an opinion given to Mr Moyane by
leading senior counsel in 2015.”

18. It seems to have somehow escaped Mr Nugent that Mr Moyane’s actions were
based on the findings of a team led by eminent counsel, Adv Sikhakhane SC, a
panel chaired by an experienced and retired judge and an internationally reputable
firm of independent auditors, all of which he had no logical basis to disbelieve.

19. For the aforesaid reasons we are instructed to demand, as we hereby do, that the
President should indicate, by no later than 9 November 2018, that he will not
implement the recommendations of Mr Nugent and his assistants, failing which
Commissioner Moyane will take steps to protect his rights, including but not limited
to approaching the courts to obtain appropriate relief. Should the President be
inclined to accept the recommendations he is hereby specifically invited to explain
his conduct in the answering affidavit in the pending Constitutional Court case
dealing, inter alia, with the legality of the SARS Commission.
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20. We look forward to your urgent response one way or the other.

Yours faithfully

MABUZA ATTORNEYS