EFF chairperson and senior counsel Dali Mpofu has vowed to take legal action against constitutional law professor Pierre de Vos, over a blog post criticising his legal strategy as suspended Sars commissioner Tom Moyane's lawyer.
On Friday, Mpofu, representing Moyane, addressed the commission of inquiry investigating governance problems at Sars, chaired by retired judge Robert Nugent. He reportedly called the commission a kangaroo court and made a number of demands, including that the commission dissolve itself.
This followed a week of evidence in which Sars under Moyane was described as an institution rife with bullying, intimidation, and which operated under a climate of fear. Employees told the commission about instances in which their desks were monitored by cameras, highly skilled employees were elbowed out of the organisation and allegations were made that Sars under Moyane started withholding tax refunds to make its books look better.
Moyane is facing a separate disciplinary hearing into his conduct following his suspension. The Nugent inquiry is not specifically about Moyane, although his leadership of Sars has taken centre stage.
On Friday, Moyane, through Mpofu, reportedly asked for a ruling from Nugent setting out five things:
Nugent J rules at 14:00 on #TomMoyane's demands (in pic).— Pauli Van Wyk (@PaulivW) July 2, 2018
1. Commission can't dissolve itself, fire an advisor;
2. #Moyane picked wrong forum, must launch review proceedings in court;
3. No precedent of funding a Commiss. to fight #Sars;
4. Only point 4 may be successful pic.twitter.com/2g1QfI7GRX
- To have the commission discontinued pending the outcome of his disciplinary inquiry.
- To have the evidence submitted to the commission thus far "expunged from the record as it was obtained under a huge cloud of unlawfulness and procedural unfairness".
- That one of the advisers to the commission, Professor Michael Katz, a tax expert, should recuse himself, inferring that he was close to President Cyril Ramaphosa because they had met before.
- That the commission will not entertain evidence related to anything that is likely to be presented during Moyane's disciplinary hearing.
- That the commission will direct Sars to pay Moyane's legal fees.
According to the Daily Maverick, Nugent was scathing in his rebuke. He reportedly said Moyane, through Mpofu, had made a submission that was "no less disgraceful than its repetition in counsel's address. The content of the document plays fast and loose with the facts, draws inferences from inadequate material and is littered with abuse, invective and sinister suggestion, purporting to support an allegation that, so it was said, 'the commission has prejudged the issues before it and is merely going through the motions to reach a predetermined outcome'."
No judge would lightly describe the conduct of officers of the High Court as "disgraceful".— Justine Limpitlaw (@JustineLimLaw) July 2, 2018
This is very serious.
It appears the lawyers have badly miscalculated here. What is going on?
Very unlike #DaliMpofu to blot his copybook in this way. https://t.co/d5Vl2wdAlW
He reportedly said that because none of Moyane's arguments were "competent in law ... on that ground alone the request for the rulings must be refused".
He rejected each demand.
Nugent reportedly said the commission has no power to expunge itself; that the commission is not a court and "the law does not require it to ignore evidence"; that Katz was appointed by the president and the commission cannot override that decision; that the commission will not give an undertaking to ignore evidence; and that the commission has no power in law to make Sars pay Moyane's legal fees.
READ MORE: Judge Robert Nugent 5, Advocate Dali Mpofu 0
In his blog, De Vos said that the demand for the commission to stop its work was "rather odd as the arguments have no valid legal basis, and are based on false claims". He suggested that while this was unethical, it could be useful as a political strategy – ultimately, to discredit the Sars commission.
De Vos explained that the commission is not a court of law and does not make binding findings against anyone. He said a commission of inquiry is a "policy enhancing tool" and that anyone is welcome to make submissions to it.
Moyane has not done so, De Vos pointed out. He said it was therefore false for Mpofu to claim that Moyane was not given an opportunity to defend himself. But De Vos suggested a deeper political strategy may be at play.
"... a president may need political cover to make decisions that would be difficult to sell to his or her own party or to the public. I suspect this is why President Cyril Ramaphosa appointed the Sars commission. Perhaps he wanted to take action against those who captured Sars, but he knew that this was not universally supported within the leadership of his own party.
If this is correct, the rather ham-handed attempts (from a legal perspective at least) to discredit the Sars commission makes perfect sense. Those who have lots to fear if Sars is rejuvenated (or who gets financial support for themselves or for their political parties from people who have lots to fear from a robust Sars) would obviously wish to discredit the Sars commission to make it politically more difficult for the president to act on its recommendations, assuming that those recommendations – if acted on – will enhance the ability of Sars to go after large corporate interests and wealthy politically connected individuals," De Vos suggested.
Mpofu was outraged, tweeting on Wednesday:
Dear Sir— Dali Mpofu (@AdvDali_Mpofu) July 4, 2018
I hope this finds you well
If you do not remove this article which I find defamatory,insulting & possibly racist from any public space in which you have published it plus any references to it on your timeline & any other platform by 12h00 expect legal action
It's also DEFAMATORY,patronizing & racist— Dali Mpofu (@AdvDali_Mpofu) July 4, 2018
I repeat:I have NOTHING personal against Bob Nugent!
Please ask Pierre de Vos
1.Has he ever even seen the door of a courtroom?,and
2.WHICH other Senior Counsel has he ever insulted and accused of lying AND being unethical?👀
His supporters chimed in:
Yhazi guys SC has been tolerating a lot of BS here and I think it's time he makes an example with someone.— 100% iZotsho🇿🇦 (@Gudsile) July 4, 2018
I for one I can never be told by an academic as to how I can approach a case. Someone who has never seen a Court door. I've been in this game for many years
Your wrinkled white small mind 🥜 is failing you or old age, who's defending #TomMoyane? We will never support injustice against anyone including #PravinGordan. When injustice was meted against Pravin, we defended him not because he was our friend but because he was treated badly— Julius Sello Malema (@Julius_S_Malema) July 2, 2018
But not everyone was convinced that Mpofu's strategy, here, was good either:
This is called the Jacques Pauw paradox. In theory, it says "remove this now". In practice, it says "everyone read this now". Amateur hour public law. https://t.co/jcYQGw7YKj— Gareth van Onselen (@GvanOnselen) July 4, 2018
This is the article that Dali Mpofu doesn't want you to see or read. He's threatened to sue Pierre de Vos for it, using spurious accusations of racism. He's a bully. You can stop him by reading it and spreading it around. https://t.co/MZazqam1yW— Yolisa Pikie (@yolisa_pikie) July 4, 2018
Gosh, you really do learn something every day. I thought that when lawyers demanded retractions they sent private emails or letters, because doing it on Twitter would obviously just look like cheap political grandstanding. Consider me schooled. https://t.co/6I3CeXghsY— Tom Eaton (@TomEatonSA) July 4, 2018
Now, Moyane has turned to Ramaphosa in the hopes that he will either pause the disciplinary hearing or abandon the commission of inquiry, according to Business Day.
Eric Mabuza, also acting for Moyane, reportedly said that the suspended commissioner will now write to Ramaphosa to ask him to stop one of the processes. Mabuza reportedly said they would approach the courts should this request be unsuccessful, reportedly adding, "the road is long".