Law Society to forefront of widespread criticism after charges dropped
National prosecuting authority head Shaun Abrahams’s flip-flop on prosecuting Finance Minister Pravin Gordhan for fraud and theft has backfired – with calls mounting for his removal and for a judicial commission of inquiry to be established into the events leading up to Gordhan being formally charged.
The national director of public prosecution’s decision was lauded yesterday by civil society as a victory in the fight against state capture and political interference.
Business leaders also came out in support, with the South African Chamber of Commerce saying: “This matter has occupied the psyche of the public and international markets, and has caused unnecessary uncertainty and disruption.”
Three weeks after telling South Africa that his prosecutors had “applied their minds to the facts” and “considered all factors” in charging Gordhan and former SA Revenue Services commissioners Ivan Pillay and Oupa Magashula, Abrahams announced the charges against the three had been dropped.
They were charged over Gordhan’s approval of a decision to grant Pillay early retirement and to be rehired as a consultant.
The early retirement resulted in Pillay receiving a R1-million payout.
In making the announcement yesterday, Abrahams threw the Hawks under the bus, suggesting the charges would not have been laid had there been proper engagement and cooperation between the three and the Hawks.
Abrahams said the case had been blown out of the water by the surfacing of a 2014 legal opinion by SARS director of law Vlok Symington, which resulted in Pillay’s early retirement being approved.
The three were scheduled to appear in court tomorrow.
Abrahams said he had only become aware of the opinion from submissions made by Pillay, Freedom Under Law and the Helen Suzman Foundation on October 17 and October 18.
“We rely on investigators,” Abrahams said. “If the Hawks submit a docket to us and they say the investigation is complete, it is incumbent upon us to analyse the material and to direct further investigations.”
The Hawks were reluctant to respond to the accusation.
“The decision [to drop the charges] was taken after more information came to light,” Hawks’ spokesman Brigadier Hangwani Mulaudzi said. “This is normal process. We accept and respect the decision of the NDPP.”
Abrahams denied any incompetence on his part, saying he would have to “look into whether someone’s head must roll”.
But commentators have suggested it is Abrahams’s head that should be on the chopping block.
Law Society of South Africa chairmen Mvuzo Notyesi and Jan van Rensburg said they would call on parliament to initiate an investigation into the Hawks’ actions or, alternatively, for a judicial commission of inquiry to be established.
“We are gravely disappointed that a matter of such magnitude and implication was decided without first obtaining all necessary information and that the charges were instituted in the first place,” Notyesi and Van Rensburg said.
They added that the about-turn appeared to be consistent with the perception that the case had been politically motivated.
“The society urges Abrahams to consider his position in the light of the severe consequences his actions had on our economy,” they said.
“Abrahams seems oblivious to and unrepentant for the damage – both at home and internationally – caused by the unsubstantiated charge of fraud brought against Gordhan. When the charges relate to fraud or theft by a high-profile individual such as the minister of finance, the NDPP should have made doubly certain of the facts before inflicting the trauma he has on the economy, the image of the country as well as the public.”
Freedom Under Law said: “We are profoundly disappointed that Abrahams still does not understand the enormity of what the Hawks and his staff have done.”
The lobby group said there had never been any proof of intention to commit a crime.
“At best, the charges were a colossal blunder.
“At worst, they were a ham-fisted attempt to loot the Treasury,” it said. Criminal law expert Ulrich Roux said Abrahams had failed the basic necessity of prosecution.
“He says he only became aware of the [Symington report] on October 18, but the report has been available since 2014.
“It is pure incompetence,” Roux said.
Wits University law professor James Grant said: “The crucial question they should have asked, and did not, was what was Gordhan’s intention at the time of his decision to allow Pillay early retirement?
“Any reasonable prosecutor would have insisted that the investigators investigate thoroughly the basis for Gordhan’s decision.”
Political analyst Steven Friedman said the saga surrounding the charges against Gordhan should be viewed in the light of battles within the ANC for access to the Treasury.
“They have failed and will never succeed,” Friedman said.
“There are just too many obstacles, also because we have courts that work.
“This also happens in other countries where people try to have access to the Treasury,” Friedman said.