Johannesburg - Deputy Chief Justice Raymond Zondo has reserved judgment on former SARS commissioner Tom Moyane’s application to cross-examine Public Enterprises Minister Pravin Gordhan.
Moyane’s legal representatives on Wednesday tried for a second time to convince Zondo at the state capture inquiry on why he should be allowed to cross-examine Gordhan. Moyane's first application was dismissed in April.
Gordhan had appeared at the inquiry last year and implicated Moyane in his testimony.
He accused Moyane of acting to serve the state capture agenda when he opened a criminal case against him regarding the establishment of the SARS “rogue unit”.
Advocate Dali Mpofu argued that his client was well within his rights to be allowed to question Gordhan regarding his accusations that he acted with “malice” when he opened the criminal case against him.
Mpofu insisted that his client was aware that he was not entitled to cross-examine Gordhan, but fairness should be applied and that he had the right to challenge the accusations made by Gordhan.
Mpofu said contrary to Gordhan’s statement, that Moyane was motivated by “malice” when he opened the criminal case, his client relied on a string of reports, the Sikhakhane report and the inspector general report which focused on the rogue unit, when he opened the case in May 2015.
He said it was untruthful of Gordhan to also claim that the issue about the rogue unit had been settled by the Nugent commission, which investigated Sars matters.
Mpofu asked Zondo to grant the application without considering the Nugent’s findings regarding the unit. He insisted that those issues had nothing to do Gordhan’s statement.
“The chair should give the leave to cross-examine without giving any regard to whatever is in the Nugent commission. To say under oath that Nugent found it (rogue unit) to be lawful is false. What motivated Mr Moyane is 2015 (to open the case) was the Sikhakhane report which found that the establishment of the unit is unlawful. What also motivated Mr Moyane is the inspector general report which stated that the unit was unlawful and that Gordhan should be charged criminally,” Mpofu argued.
Zondo found an issue with Gordhan’s statement which presumed that Moyane had “malicious” intentions when he opened a criminal case against him and was aiding state capture.
“If Mr Gordhan had stopped and said I do not know what was in his (Moyane’s mind) when he laid the charges and I am not saying he acting maliciously, then that would amount to saying there is no issue and need to grant leave to cross-examine. The problem is he went further and said he believes Mr Moyane abused the legal process and he abused this in furtherance of state capture – that complicates things,” Zondo said.
Advocate Michelle Le Roux, who argued for Gordhan, insisted that her client was willing to appear for cross-examination if there was a need. However, Le Roux argued that Moyane’s application should not granted as it was an attempt to undo Zondo’s earlier ruling.
Le Roux said Gordhan had never testified that he knew what motivated Moyane when he opened a criminal case against him. She insisted that Gordhan stated that Moyane’s actions had led to the Hawks investigation against him and attempts to remove him from office.
“Mr Gordhan’s applications has been consistent. He says that he doesn’t know what was in Mr Moyane’s head when he opened the criminal case against him and led to the 27 questions from the Hawks and criminal charges. He says that he understands the 27 questions which stem from the criminal charges laid by Moyane led to a political campaign against him aimed at forcing him to resign from the position of minister of finance,” Le Roux argued.
The commission continues hearing evidence from crime intelligence officer Colonel Dhanajaya Naidoo.