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Justice Kate O’Regan 1st Floor

83 Central Street
Presiding Officer Houghton
Email: PO Box 55045
Northlands 2116
Tel: +27 11 483-2387/483-0476
Fax: +27 11 728 - 0145
Your Ref: Direct e-mail:
Our Ref: Mr. ET Mabuza
Date: Wednesday, May 16, 2018

Dear Justice O’Regan,

Disciplinary proceedings of Commissioner Tom Moyane

1. As you know, we act on behalf of Mr Tom Moyane, who is the Commissioner of the
South African Revenue Service (“SARS”), also referred to hereafter as “our client”
and/or “the Commissioner”.

2. We refer to your email received on Monday 14 May 2018, for which we thank you.

3. We are grateful to you for reminding us of your long-standing association with

Corruption Watch before the start of the inquiry.

4. It is a matter of public record that your organisation, Corruption Watch, has been the
most strident opponent of Mr Moyane. For a long period of time now Corruption
Watch has embarked on a sustained and tireless public campaign to have Mr
Moyane removed as the Commissioner of SARS. This campaign has taken many
forms including but not limited to laying a criminal complaint against him to the
Directorate for Priority Crime Investigation (Hawks); requested the National
Prosecuting Authority (NPA) to institute a prosecution against Mr Moyane;
requested for a parliamentary inquiry in respect of the SARS finding on Mr Jonas

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

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5. As recently as on Monday 14 May Corruption Watch issued a media statement in

which it announced that it was informed that the NPA was in the process of reviewing
its initial decision not to prosecute Mr Moyane.

6. It is also a matter of public record that so soon after your appointment by the
President to preside over the inquiry, on 7 May 2018 and without any sense of irony
whatsoever, Corruption Watch issued a media statement welcoming the
appointment. The statement reads in part as follows:

“There is no individual that has caused greater harm to the interests of democratic
South Africa than Tom Moyane” said David Lewis, executive director of CW.” His
conduct is little short of treasonous. He belongs behind bars and we will do our
utmost to ensure that he gets his just desserts.” (emphasis added)

7. Presumably, as its board member you associate yourself and are in full agreement
with this and other statements made by Corruption Watch concerning Mr Moyane
and the general public posture which Corruption Watch has adopted against him.

8. Mr Moyane has accordingly instructed us to communicate his strongest objection to

you presiding over his inquiry. He is of the firm view that your association with
Corruption Watch has created an untenable situation for you to preside in his inquiry.
He does not believe that you will be able to bring an objective and unbiased mind to
the inquiry. Given the obvious importance of this matter, Mr Moyane wants nothing
more than to appear before a judge who has no iota of bias against him. Regrettably,
he does not believe that you can discharge such responsibility in the circumstances
of this case. In fact, not only there is a strong perception of bias on your part but
your association with Corruption Watch also places you in a conflict of interest
situation. Cumulatively, this makes your appointment to preside over the inquiry
wholly unwarranted and undesirable.

9. In fact, to put it bluntly, given the obvious and palpable perception of bias and conflict
of interest on your part, it is rather surprising that you still accepted the appointment.
It is not as if you were not aware that your long-standing association with Corruption
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Watch may create a ‘problem’ for you in presiding in the inquiry. The very fact that
you disclosed the issue suggests that you are acutely aware of the difficulties you
may face in presiding over the inquiry.

10. It is disappointing that you expected of our client who is a lay person to point out the
unsuitability or undesirability of your appointment. The very least he expected of you
as a prudent and experienced justice was to have declined the appointment from
the onset or to now recuse yourself formally. In fact, it is clear from the factual
exposition set out herein that both the appointment by the President and your
acceptance thereof constitute a series errors of judgment by both parties.

11. We submit respectfully that we have set out sufficient detail of the factual exposition
which underpin our client’s contention that there exists a strong and reasonable
perception of bias and/or conflict of interest on your part. This is indeed a classic
case where the facts cry out for your recusal. At this juncture we can do no better
than to remind you of the old-age adage that justice must not only be done but also
seen to be done.

12. In the totality of the circumstances, our client has instructed us to request that you
recuse yourself from presiding over the inquiry in order to ensure a fair process.

13. We believe that unfortunately it will reflect negatively on and/or demean the dignity
and high esteem of our judiciary were we forced to ask for your recusal in open
court, hence our plea for you to recuse yourself on your own accord.

14. We trust that after proper reflection you will take the appropriate steps to recuse
yourself from presiding in the inquiry, moreso given the esteemed position you hold
in our judiciary.

15. We place on record that we hold instructions to ask for your recusal formally should
we not receive a favourable response by no later than close of business on Friday,
18 May 2018.

16. All our client's rights are reserved.

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Yours faithfully


cc The President of the Republic of South Africa

Honourable MC Ramaphosa