Lawyers acting on behalf of axed South African Revenue Service (Sars) commissioner Tom Moyane have applied yet again for leave to cross-examine Public Enterprises Minister Pravin Gordhan.

They have implored State capture commission chairperson Judge Raymond Zondo to grant their request unconditionally because "Gordhan's claims are unsubstantiated" and not in the interests of fairness.

"The issue of fairness is central to this. There was a general outcry after the first ruling, but the point is, with the greatest respect, that this notion that people are above being cross-examined should be dispelled.

"We accept that there is no right to cross-examine, but there is a right to fairness. A person cannot come here and say that Moyane is an 'advancer' of state capture and then he is immunised from being cross-examined," advocate Dali Mpofu, SC, argued before the commission on Wednesday.

This comes after Zondo requested supplementary affidavits - for clarification purposes - under the title of malice from both parties on an issue involving the National Treasury in which Gordhan alleged that Moyane had laid charges against him with the Hawks relating to the so-called SA Revenue Service "rogue unit" while he was finance minister, News24 reported.

On behalf of Moyane, Mpofu argued that this request should be granted, based on the statement Gordhan made in his clarificatory statement that, in summary, Moyane abused the legal system and acted maliciously by charging him on the rogue unit in pursuit of the advancement of State capture.

"The Nugent Report was in December 2018. Therefore, when he [Gordhan] was sitting here [testifying], he could not have been motivated by this report. The chair should grant leave without regard of the Nugent Commission because of four reasons. One, how could he have found the rogue unit lawful if it never existed? It is false.

"Even if it was not false, that finding cannot overcome the four reports Moyane relied on. The Sikhakhane report which calls the establishment of the unit unlawful, the inspector general report which recommended that Gordhan be charged criminally. As a commissioner, you should be fired if you do not take it to the police and report it. There can never be more ground for cross-examination," Mpofu submitted.

Gordhan's lawyer, advocate Michelle Roux, was of the view that the arguments Moyane's legal team presented did not speak to the issue of malice before Zondo - as per his request – but that they intended to undo what Zondo had already ruled on.

"What you're being asked to do today is to revisit that application that you have previously disallowed. What has been argued today has nothing to do with the malice issue that is before you today. You have already decided that it does not assist the commission to cross-examine why my client believes the Nugent Commission.

"Gordhan has said in his evidence and all of his affidavits that Moyane's dismantling of Sars and resistance to his authority appears to be advancing state capture and the Nugent Commission found so. In respect of charges, he said he does not know what was in Moyane's head when he filed the charges," she said.

Critical point 

Le Roux is also of the view that Moyane should clear his name through his own version of events and not through the cross-examination of Gordhan.

"The critical point is that it is time for Moyane to tell you what he did at Sars was not a part of state capture. He wants to come to use the commission to discredit my client.

"For the purposes of today, if you would like a paragraph saying Gordhan only said that he [Moyane] was the origin of the criminal charges against him and that everything else he [Gordhan] has said about Moyane was based on his personal experiences, we could do that," she added.

Le Roux said all the reports Moyane relied on have, to some extent, been discredited and media publications have withdrawn their articles about the reports.

Mpofu, however, disputed this claim, arguing that the reports, other than the Public Protector report, still stand.

"In this application, there is only one outcome. Dismiss this and get a full version from Tom Moyane," she said.

Evidence leader, advocate Paul Pretorius, SC, told the commission that Gordhan's statement on Moyane required further clarification.

"At the very least, one could say there is confusion about what Gordhan is saying about Moyane. The purpose of cross-examination is also to clarify.

"If cross-examination is granted it must be in accordance with our own rules and based on evidence given to you. By that alone, there must be a version of events from Moyane. Chair, you are free to make a ruling or clarify any uncertainty," he said.

In April Zondo denied Moyane leave to cross-examine Gordhan after his application failed to show how Gordhan implicated him through his statement on allegations of State capture and failed to show why these themes would serve in the best interests of the work of the commission, News24 reported.

The decision came after the commission heard Moyane's application for leave to cross-examine Gordhan in March, after Gordhan implicated him in testimony in November last year.

Zondo's decision has been reserved.

The inquiry continues on Wednesday when Crime Intelligence whistleblower Dhanajaya Naidoo takes the stand.