Suspended SA Revenue Service (Sars) executive Refiloe Mokoena on Wednesday abandoned her bid to stop her boss, Sars commissioner Edward Kieswetter, from proceeding with the disciplinary hearing against her. Mokoena, who is Sars’ chief officer: legal counsel, was due to apply for an urgent interdict in the Labour Court in Braamfontein to halt the disciplinary action before the matter was withdrawn. The withdrawal was made an order of the court.
Mokoena has been under fire for authorising the payment of R420 million in VAT refunds to Gupta-owned companies. She accuses Kieswetter of lacking independence and objectivity.
Sars has, among other things, charged Mokoena with advancing the interests of the Guptas and their Oakbay group of companies. Mokoena wanted the court to halt the new process initiated by Kieswetter after her disciplinary hearing collapsed earlier this year.
According to papers filed in the labour court last week, Mokoena wanted to interdict and restrain Sars and Kieswetter from proceeding with its new informal disciplinary process pending the determination or finalisation of the review application she planned to initiate after being granted an order stopping the hearing.
Mokoena had intended to review and set aside Kieswetter’s unilateral decision to discontinue or abandon the formal disciplinary process initiated in April this year in favour of an informal process.
“Evidently, there are no exceptional grounds whatsoever given by the first (Sars) and second respondent (Kieswetter) which may warrant the change of process which was conducted by an independent law firm which was further given clear instructions upon the first respondent’s successful recusal application,” reads Mokoena’s affidavit.
She said Sars should not be relieved of the requirement that an employer must follow a formal process to prove its decision to dismiss an employee or to come to any decision that adversely affects them.
Mokoena also told the court that Kieswetter was incapable of having an independent and objective mind in the disciplinary process because in his mind it is impossible to restore an employment relationship of trust. He has totally aligned himself with the Nugent commission findings and recommendations. She added that Kieswetter could not be an independent arbiter when he is under so much pressure to return the outcome desired by his employer.
Mokoena was given a notice of intention to suspend by former acting Sars commissioner Mark Kingon in September last year and a few days later invited to give evidence at the commission of inquiry into the tax collector’s administration and governance chaired by retired judge Robert Nugent. But she maintained that Nugent’s final report made no adverse findings against her.
Sars then subjected her to a disciplinary process but the advocate briefed to preside over the hearing was forced to recuse himself because the tax collector wanted one who had no prior involvement with any of the parties.
The advocate’s recusal led to the adjournment of proceedings with the understanding that a new chairperson would be appointed to continue with the formal hearing.
On July 31, Kieswetter wrote to Mokoena indicating that Sars had decided to continue disciplining her based on the initial allegations against her as well as additional allegations. Mokoena objected to the new process as she believed it deprived her of an opportunity to have a fair hearing and that Sars discontinued the disciplinary process without a just cause.
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