Quote of the week

Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation.  This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.

KHAMPEPE J and THERON J
Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29 (22 July 2019)
11 December 2018

High Court repudiates all arguments advanced on behalf of Tom Moyane

Former South African Revenue Services (SARS) Commissioner Tom Moyane and his legal team (headed by advocate Dali Mpofu) failed to persuade the North Gauteng High Court to reinstate Mr Moyane and to halt the appointment of a new SARS Commissioner. The court also declined the invitation from Mr Moyane and his lawyers to derail the Nugent Commission of Inquiry into the mismanagement of SARS. In rejecting Mr Moyane’s various applications, the High Court had some of the harshest words I have ever read in a court judgment for the way in which Moyane and his legal team conducted themselves during the proceedings.

Former SARS Commissioner Mr Tom Moyane and his lawyers – perhaps aware that the law and the facts were against them – used a shotgun approach when they approached the High Court to intervene in various processes which had led to Mr Moyane’s dismissal.

To simplify somewhat, the first leg of this approach centred on the request to reverse Moyane’s dismissal and to prohibit President Rampahosa from appointing a new SARS Commissioner and from implementing any other recommendations from the Nugent Commission’s interim report.

The second leg of the application sought to have reviewed and set aside the scathing ruling of SARS Commission chair judge Nugent against Mr Moyane in which the judge found that submission made on behalf of Mr Moyane before the Commission played “fast and loose with the facts”. It also sought to interdict judge Nugent from issuing his final report.

The High Court dismissed Mr Moyane’s arguments in their entirety in the judgment of Moyane v Ramaphosa and Others

At the heart of the entire application by Mr Moyane was the claim made by advocate Dali Mpofu in his written heads of argument that the application on behalf of Mr Moyane “deals with some of the most egregious violations of human rights by the State against a single human being ever witnessed during the dawn of democracy”.

The High Court’s response to this claim provides some insight as to why the various applications were all dismissed:

This submission is startling to say the least, inasmuch as it is really common cause that the status quo ante that [Moyane] seeks in these proceedings is solely concerned with the financial implications of his dismissal by the President. I may add that both [judge Nugent] and the President was entitled to treat [Moyane’s] complaints as mere bombast designed to obscure the fact that he failed to furnish any version in opposition to the evidence against him.

This theme – that the various arguments advanced on behalf of Mr Moyane lacked any firm legal basis – permeates the entire judgment. For example, at some point the High Court bemoans the fact that Mr Moyane and his lawyers offered only “bland and vague reliance… on un-established constitutional rights without any indication of how all of those rights would apply in the present matter”. Elsewhere the High Court bemoans the “failure by [Mr Moyane] to adduce any facts which would demonstrate prima facie right to an order reinstating him in the position as Commissioner of SARS”.

It is impossible to discuss all aspects of the extensive judgment in detail, but let me focus on two issues. First, Mr Moyane asked for interim relief and asked the court, among other things, to suspend the decision by President Ramaphosa to dismiss him.

The High Court pointed out that in order to succeed Mr Moyane had to establish a prima facie right even if it is open to some doubt, a reasonable apprehension of irreparable and imminent harm to the right, if an interdict is not granted, the balance of convenience must favour the grant of the interdict, and the Applicant must have no other reasonable remedy.

Moreover, the Constitutional Court held that when the court is asked to interfere with a decision by the President to exercise a statutory power (as he did when he fired Mr Moyane) “a Court must carefully probe whether, and to which extent, the restraining order will probably intrude into the exclusive terrain of another branch of Government”. Because of separation of powers concerns, courts should grant such requests only in the clearest of cases.

This means that when it evaluates where the balance of convenience rests, a Court must recognize that it is invited to restrain the exercise of statutory power within the exclusive terrain of the Executive, such as in the present matter. It must assess carefully how and to what extent its interdict will disrupt such executive functions conferred by law, and thus whether the restraining order will implicate the tenant of division of powers.

It was therefore always going to be difficult for a litigant like Mr Moyane to convince a court to interfere with the decision of the President to dismiss him. But there was a bigger problem with Mr Moyane’s argument, as he argued that his “very narrow” financial interests should trump the national interest to have a fully functional SARS.  The Court rejected the argument that the balance of convenience favoured Mr Moayne’s very narrow financial interests, holding as follows:

Having regard to the national interest, I can just say that the mere repetition of this submission is in itself sufficient to destroy its credibility. One can barely contend that it is seriously made in the present context, or at all.

Furthermore, Mr Moyane and his lawyers were faced by the problem that he did not enjoy the rights – including the rights to procedural fairness – that he claimed were being breached. As I have noted several times before, this was made clear by the Constitutional Court in Masetlha v President of the Republic of South Africa and Others, which held that when the President exercised executive authority his decision could only be reviewed on the narrow ground of rationality.

As there was no indication that the recommendation by the Nugent Commission was animated by bad faith or that it was otherwise tainted, all the President was obliged to do was to consider the matter carefully before taking a decision for a legitimate purpose of saving SARS. This the President did. As the High Court held: “Indeed, the President would have been acting irrationally if he had not acted upon the interim report” of the SARS Commission and had not fired Mr Moyane. In conclusion:

Selfish personal interest cannot be weighed up against the national interests, and the stability of the Revenue Services in the context of the South African economy as a whole. In my opinion the President has acted rationally, lawfully and fairly. There are no facts to show otherwise. I need scarcely say that this is certainly not a case where I should grant any relief at all, be it on an interim basis or otherwise. The common cause facts certainly establish no basis for any relief at all, and the repetition of gratuitous insults hurled against the President and the [judge Nugent], do not establish any cause of action worthwhile of attention. I therefore agree … that the case made out by [Mr Moyane] is deeply flawed. It is not a proper case, nor a strong one, let alone the ‘clearest of cases’.

A second matter that warrants attention is the question of cost. Mr Moyane’s lawyers rather surprisingly (given their legally weak case) asked that the court order a personal cost order against the President and judge Nugent. The High Court did not take kindly to this request.

Mr Moyane had argued the President had acted prematurely, unlawfully and irrationally by accepting and implementing the interim report of judge Nugent and contended that the President’s conduct in this did not merely constitute an error of judgment, but “rather displays a flagrant disregard of Constitution norms and is grossly negligent and demonstrates a reckless misconception of his duties”. The High Court dismissed this request as follows:

On the present facts, this is an astounding submission. It ignores all the evidence presented to [the Nugent Commission], the failure of [Moyane] to himself give evidence in those proceedings, and the considerations relating to the efficient functioning of the Revenue Services in the economy. If this is [Mr Moyane’s] attitude it displays an astounding lack of insight into what is required for any leadership role in SARS. There is no basis at all for a cost order against [the President].

But this was not the end of the matter. The accepted principle in our law – established by the Biowatch judgment – is that a Court, in constitutional litigation, should not make an order against an applicant who acts in good faith to preserve his or her constitutional rights, or to uphold the Rule of Law in any given context. So, normally no cost order would have been made against a litigants like Mr Moyane.

But because a court of law is not like Twitter, where people can make all kinds of unsubstantiated and scurrilous claims and indulge in inflammatory political rhetoric against their opponents without usually having to face any consequences, the High Court took the unprecedented step of ordering Mr Moyane to pay all the cost of the case on an attorney client scale. This was because of the “particularly reprehensible” conduct of Mr Moyane.

It is vexatious and abusive. Both the Office the President and [judge Nugent] have been attacked, insulted and defamed without any reasonable cause. Allegations impugning their integrity and character have been made regardless of the objective facts; Insults have been hurled at every conceivable opportunity, No reasonable or lawful grounds exist for such unwarranted attacks on the integrity of the [President] and [judge Nugent]. No cause of action has been made out for interim relief and the whole of the application is an abuse of the process of this Court. I cannot think of a single reason of why this application should be classified as a bona fide attempt to secure or safeguard the Applicant’s constitutional, common law or contractual rights.

The High Court obviously took a dim view of this abuse of legal process by Mr Moyane and his lawyers and concluded with a  warning of sorts:

It is time that litigants realize that they cannot lightly make abusive allegations in Court affidavits under the mantle of safeguarding their constitutional rights, on the assumption that Court cost orders would not be granted against them. In my opinion, the facts of the matter before me clearly show that a punitive cost order against the Applicant is justified. His behaviour throughout these proceedings is abominable.

Only time will rell whether the court’s stinging rebuke of the arguments presented to it (as well as the personal cost order against him) will dissuade Mr Moyane from continuing his quixotic but doomed quest to be reinstated.

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