The Honourable President of the Republic of South Africa 1st Floor

83 Central Street
Mr Cyril Ramaphosa Houghton
Union Buildings 2198
Pretoria PO Box 55045
Northlands 2116
Tel: +27 11 483-2387/483-0476
Email: nokukhanyaj@presidency.gov.za Fax: +27 11 728 - 0145
angeline@presidency.gov.za Direct e-mail: eric@mabuzas.co.za

sibongile@presidency.gov.za

Your Ref:
Our Ref: Mr. ET Mabuza
Date: Monday, November 05, 2018

Dear President Ramaphosa,

SARS Commissioner Tom Moyane

1. In our capacity as the legal representatives of SARS Commissioner Tom Moyane

(“our client”), we are instructed to refer and hereby respond to your letter dated
1 November 2018 served on us at approximately 17h15 on that date.

2. We also refer to your answering affidavit in the ongoing Constitutional Court

application, similarly served upon us, which indicates that it was signed by you at
17h26 on 1 November 2018 – in other words, within a miraculous ten minutes
after our receipt of the removal letter. In the said affidavit, the “decision”
communicated in your letter looms large in that the only substantive defence
offered in the Constitutional Court application is alleged “mootness” owing solely
to your removal decision contained in the said letter.

3. It should therefore be obvious that the 93-page affidavit was prepared long before
the decision to remove (on which it was premised) was made on 1 November
2018. How this kind of contrived mootness is supposed to withstand the scrutiny
of a court of law remains a mystery yet to be witnessed. Only the wilfully blind
can fail to see such blatant obfuscation.

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

 Page 2

4. In any event and putting aside the abovementioned illogicalities, it is equally

unclear how the Constitutional Court application, which, inter alia, seeks an order
declaring the SARS Commission to be unlawful, conflicted and improperly
constituted, can be rendered “moot” by a removal from office, which is premised
solely on the recommendation of the self-same impugned SARS Commission.
To label this as circuitous, illogical and irrational reasoning would be an
understatement indeed!

5. Additionally, your affidavit is self-contradictory in that at, for example, paragraph

18, you assert that “it is abundantly clear that all the relief sought has been
rendered moot by my decision to remove Mr Moyane” and yet at paragraph 28,
you state that “the only challenge which subsists is his challenge to my refusal to
remove Professor Katz as an assistant in the SARS Commission”. At least one,
if not both, of these two statements is incorrect. They are incompatible and
cannot both be found in the sworn statement of the same person.

6. The list goes on: the entire removal letter, read with your affidavit, is riddled with
such extreme examples of self-evident irrationality that it is not possible to discern
what is essentially sought to be communicated therein.

7. Stranger still, you do not deal with the representations made on behalf of our
client on 26 October 2018, at your invitation and only pay lip service to having
done so. A glaring example is the point saliently raised by him that the Terms of
Reference of the SARS Commission do not entitle it to make any
recommendations midstream and, even worse, to make such recommendations
concerning matters which fall outside its mandate. It should be obvious that if
this is indeed so, it follows that you are not entitled to “accept”, as you purport to
have done, such recommendations which would be legally non-existent, null and
void. This is known as the ultra vires doctrine or, in modern parlance, the principle
of legality.

8. Your alleged acceptance of the recommendations, the consequential purported

termination of our client’s employment contract and the resultant raising of the
 Page 3

defence of alleged “mootness” can all only be sustained upon the assumption
that the SARS Commission:

8.1. is lawfully and properly constituted (i.e. not biased or conflicted);

8.2. has acted within its Terms of Reference;

8.3. has conducted a proper inquiry, including hearing both sides of the story;

8.4. has made valid findings based on a proper inquiry; and, if so

8.5. has accordingly made legally sustainable recommendations premised on

such valid findings.

9. In the event of any one or more or all of the said assumptions being found to be
incorrect by the Constitutional Court, the entire foundation on which the purported
termination of office is premised must and will crumble. You nevertheless took
your decision to terminate fully knowing that these issues are yet to be determined
by the court, one way or the other.

10. Such conduct leads not only to an absurdity but borders on contempt of court or
at least a reckless disregard of pending court processes and the rule of law. No
person is allowed to pre-empt court outcomes in such a manner. More
specifically, such conduct falls short of the conduct expected from a reasonable
President of the Republic of South Africa who has taken the prescribed oath to
obey, observe, uphold and maintain the Constitution and, by implication, the role
of the courts and the judiciary.

11. Finally, and even assuming we are wrong in all the aforeoging, under the common
law, you are legally precluded from terminating a contract, even assuming it has
indeed been breached, when you have already elected to follow the disciplinary
route, as you did by suspending Mr Moyane and appointing Advocate Bham SC
to chair the ongoing Disciplinary Inquiry. This is known as the doctrine of election.
It is also interchangeably viewed in our law alongside the principles of waiver
and/or estoppel. In simple terms, its purpose is to prohibit or prevent the
 Page 4

aggrieved party to a contract from blowing hot and cold as to which remedy it can
seek or obtain against the party allegedly in material breach of the said contract.
No doubt your advisers will explain these principles and doctrines of our law.

12. In that regard, it is instructive to note that at paragraph 27.1 of your affidavit, you
state that one of the consequences of your decision to terminate the contract
(which is based on the SARS Commission) is that “there is no need to proceed
with the disciplinary inquiry”. In the same breath, it is one of your defences that
there is no overlap between the SARS Commission and the Disciplinary Inquiry.
Yet, the actions of the one have somehow rendered the continuation of the other
unnecessary!

13. Another unlawful reason you state for your decision is our client’s alleged “refusal”
to participate in the SARS Commission. This is incorrect. Our client has
repeatedly stated his willingness to participate in the SARS Commission and any
other lawful process once his objections have been adjudicated upon by a court
of law, as enshrined in section 34 of the Constitution. That will only happen once
the Constitutional Court has pronounced thereon, hence his direct and urgent
approach to that court.

14. For your information and in terms of Rule 6 and Rule 23 of the Rules of Court,
every person is entitled to raise a legal objection or what is known as an
exception. Pending its resolution, the dispute on the merits is suspended.

15. Our research prompted by the letter handed to us by Mr Robert Nugent and
written by Mr Michael Katz confirming your attorney and client relationship shows
that Mr Katz, acting on your behalf, has raised a preliminary legal point in the form
of a Rule 23 exception, which has resulted in stalling the consideration of the
merits of the civil damages claim (Case No 64770/2015) brought against you
personally by the victims of the Marikana Massacre of August 2012. Surely, that
can never logically be used as a basis to remove you from office on the basis that
you have thereby “refused” to deal with the issues raised by the said victims. This
example demonstrates that you personally and subjectively know that the raising
 Page 5

of preliminary objections cannot be equated to a punishable refusal to participate

in proceedings.

16. To argue otherwise in the case of our client, as you certainly do in your letter, is
not only inconsistent and self-contradictory, but lacks any rational basis in logic
and in law and smacks of double standards. All are equal before the law.

17. The accusation that the taking of preliminary legal or technical objections is per
se something to be punished is also a bit rich coming, as it comes, from a
President whose only reply and defence to the entire Constitutional Court
challenge is to raise three technical points, namely:

17.1. the court lacks exclusive jurisdiction;

17.2. this is not an appropriate case for direct access; and

17.3. mootness.

18. The refusal ground is, finally, bad in law and it defeats the alleged mootness in
that, obviously, if the Constitutional Court finds that the SARS Commission is
unlawful and accordingly a nullity, as alleged, then the refusal to attend it would
have been justifiable or, at worst, unremarkable. Far from being moot or
academic, the outcome of the Constitutional Court application will in fact
determine precisely whether your decision to terminate Mr Moyane’s contract is
based on lawful grounds or not.

19. For these and countless other grounds of unlawfulness, we are instructed to
demand, as we hereby do, that you must forthwith withdraw your letter of
termination dated 1 November 2018, restore the status quo which obtained
before the service thereof (i.e. that our client is suspended with pay pending the
outcome of the Disciplinary Inquiry) and duly await the outcome of the pending
Constitutional Court application and/or the Disciplinary Inquiry. Upon your failure
to do so on or before 12h00 on Friday 9 November 2018, we hold firm instructions
to institute urgent court proceedings without any further notice to you, to seek
 Page 6

inter alia orders declaring your aforementioned conduct to be irrational, unlawful

and invalid and also interdicting you, pending the outcome of the Constitutional
Court application, from purporting to receive, accept and/or implement any
“recommendations” of the SARS Commission, including but not limited to taking
any steps intended towards advertising for and/or appointing any person in the
position of SARS Commissioner, from which our client has been unlawfully and
irrationally removed. Our client is entitled to hold that office until his term of office
expires or until he is lawfully removed.

20. We hereby urge, implore and warn you never to forget that ours is a constitutional
democracy built on the rule of law and the duty to respect the human dignity of
all our fellow human beings or that you took an oath of office which imposes a
solemn duty upon you to “do justice to all. So help me God”.

21. Kindly favour us with your response before the aforementioned Friday deadline.

Yours faithfully

MABUZA ATTORNEYS

CC: Minister of Finance

Mr Tito Mboweni