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Inquiry told of Moyane bid to gag media

Publish date: 10 August 2018
Issue Number: 4520
Diary: Legalbrief Today
Category: General

In response to defamation proceedings brought under Commissioner Tom Moyane’s watch at SARS, the amaBhungane Centre for Investigative Journalism has turned to the Nugent inquiry into tax administration and governance at SARS for clarity on whether its reporting on allegations of unlawful conduct within the agency breached section 67(3) of the Tax Administration Act (TAA), by disclosing SARS and taxpayer confidential information, notes Legalbrief. In 2016, SARS, Moyane, and acting chief operations officer, Jonas Makwakwa, brought defamation proceedings against two amaBhungane reporters and the Mail & Guardian. AmaBhungane argues this was neither rational nor in the best interests of the public or SARS. A Mail & Guardian report notes the SARS suit related to an amaBhungane exposé, ‘Sars wars: Moyane’s empire strikes back‘, which the M&G published in 2016. Its authors, Sam Sole and Craig McKune, were cited as defendants alongside the paper. The story reported on allegations made by insiders against Moyane, Makwakwa and SARS. In their suit, Moyane and Makwakwa sought R1m in damages each while SARS claimed it had suffered damages worth R2m. They also claimed that the reporters and the newspaper committed a criminal offence, breaching the TAA by disclosing confidential information.

Shortly after Moyane was suspended as commissioner, Moyane and SARS withdrew their claims. Makwakwa has not, notes the M&G report. AmaBhungane’s Nugent submission states: ‘In its attempt to, we submit, improperly invoke the TAA as a means to suppress the media’s reportage of allegations in the public interest against them, the plaintiffs acted against the public interest and sought to stifle reportage which the public clearly had a right to know. The effect of an allegation that amaBhungane breached section 67(3) of the TAA is that it committed a criminal offence. The potential for such a finding to be visited upon a member of the media would chill reportage relating to SARS (such as the reportage in the article) which clearly would undermine media freedom and the public’s right to be informed.' The submission also notes that SARS similarly sought to rely on section 67(3) to declare unlawful parts of veteran journalist Jacques Pauw’s book The President’s Keepers. The submission invites the commission to ‘express a view in its report on whether the reportage of allegations of unlawful conduct within SARS, which is in the public interest, is a contravention of section 67(3) of the TAA’. AmaBhungane is represented by Webber Wentzel.

Full Mail & Guardian report

Commission’s terms of reference

amaBhungane’s full submission