An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
When National Director of Public Prosecutions (NDPP), Adv. Shaun Abrahams, announced on 11 October 2016 at a televised press conference that the NPA would charge Finance Minister Pravin Gordhan for fraud for approving an early retirement (with full benefits) for an employee at the South African Revenue Service (SARS), many lawyers (including myself) pointed out that (on the basis of the evidence provided by Abrahams during the press conference) the NPA stands no chance of ever securing a conviction. Abrahams has now belatedly come to the same conclusion and has dropped all charges against Gordhan and his two co-accused. In the process he has done immeasurable damage to whatever credibility he might still have had.
Since the day he announced the decision of the NPA to charge Minister Pravin Gordhan with fraud, NDPP Adv. Shaun Abrahams has consistently played a double game. On the one hand Abrahams insisted that he had nothing to do with the decision to charge the Minister, but on the other hand he also – through words and deeds – indicating that he completely supported the decision to charge Minister Gordhan.
Thus Adv. Abrahams gave a long (and legally completely irrelevant) speech when he announced on 11 October that the NPA was charging Gordhan. In the entirely inappropriate remarks made at this press conference he unfortunately suggested that the Minister might be guilty of other criminal offences relating to the establishment of an investigative unit within SARS and that the Minister may still be charged with contraventions of the National Strategic Intelligence Act.
But the legislation (the National Strategic Intelligence Act 39 of 1994) does not create any criminal offences and could therefore not legally form the basis of any criminal investigation or prosecution against the Minister. Neither was the Minister being charged with any crimes related to breaches of this Act.
To comment on any possible contraventions of a law that does not create any criminal sanction, is akin to Abrahams suggesting publically that the President might be guilty of a crime because he was spotted wearing pink tie.
Abrahams was either monumentally incompetent (and thus lacking very basic knowledge of criminal law), or he was deliberately attempting to smear the Minister with innuendo about alleged breaches of legal provisions which could not possibly constitute a criminal offence. (Some cynics may argue that it may not be either/or, but both.)
On 12 October Abrahams told a journalist (after appearing before MPs) that he was confident the fraud charges against Minister Pravin Gordhan and two other former SARS officials will stand up in court. When asked whether the charges will stick he said:
Firstly, I am extremely confident by the prosecutors that looked into the matter that decided on the prosecution respect of the matter, otherwise we’d have never taken the matter to court. The NPA do not take matters to court if they don’t believe there are reasonable prospects of a prosecution….I implore you to wait until the trial in respect of the matter, when the evidence is presented.
At this event Abrahams repeated the claim that charges could be pending against Gordhan for his alleged involvement in overseeing the formation of the alleged SARS investigative unit. As the law governing the establishment of this unit does not create any criminal offences this statement was either based on catastrophic ignorance of the law or on ulterior purpose.
Today Abrahams announced at a press conference that he had decided to drop all charges against Minister Gordhan and two others. Three weeks ago he claimed to be confident that the Minister would be convicted. Yesterday he stated exactly the opposite. In the intervening three weeks the political ground had shifted.
When asked why he had not interfered before today to stop the prosecution or to set aside the decision to charge the Minister of Finance, Abrahams falsely claimed that he was not permitted to do so.
However, the Constitution and the NPA Act allows the NDPP to intervene in at least two distinct ways in the decisions of his underlings when they consider a prosecution or after they decide to prosecute an individual.
In terms of section 179(5)(d) of the Constitution, read with section 22(2)(c) of the National Prosecuting Authority Act, the NDPP may review a decision to prosecute or not to prosecute, after consulting the relevant Director and after taking representations, within the period specified by the National Director, of the accused person, the complainant and any other person or party whom the National Director considers to be relevant.
Nothing in the Constitution or the NPA Act prevents the NDPP from reviewing the decision to prosecute before the NPA formally announces its decision to prosecute a suspect. The NDPP could also have announced on 11 October that his underlings had decided to prosecute Minister Gordhan but that he will urgently review the decision in terms of section 179(5)(d) of the Constitution and section 22(2)(c) of the NPA Act.
This he did not do. He publically announced the decision to charge the Minister of Finance and through various statements gave the impression that he fully supported the decision. A public outcry followed the announcement, after which Abrahams for the first time suggested that he may review the decision to charge Minister Pravin Gordhan with fraud.
But, Abrahams did not have to wait for things to get to this point. This is because section 179(5)(c) of the Constitution, read with section 22(2)(b) of the NPA Act, states that the NDPP may “intervene in any prosecution process when policy directives are not complied with.”
One of the applicable policy directives is the Code of Conduct for Members of the NPA, issued on 29 December 2010.
In terms of section C of this Code prosecutors should perform their duties without fear, favour or prejudice, and should in particular… “(g) take into account all relevant circumstances and ensure that reasonable enquiries are made about evidence, irrespective of whether these inquiries are to the advantage or disadvantage of the alleged offender”.
Moreover section D of the Code states that prosecutors should perform their duties fairly, consistently and expeditiously and… “(d) in the institution of criminal proceedings, proceed when a case is well-founded upon the evidence reasonably believed to be reliable and admissible, and not continue a prosecution in the absence of such evidence”.
As the decision to drop all charges against Gordhan makes clear, reasonable enquiries were not made about the evidence which clearly showed that Minister Gordhan could not possibly have had the intention to commit fraud.
It took two nongovernmental organisations a day or two to uncover a legal opinion (which the NPA may or may not have known about) which completely torpedoed the case against Gordhan. However, the NPA failed to do even the basic work to find this document (or alternatively, ignored it). But even without this document, it must have been clear to any half competent lawyer, (as it was to me three weeks ago) that it would be impossible to secure a conviction against the Minister of Finance.
When Adv. Abrahams announced that the NPA was charging Minister Gordhan for fraud and theft, some of us had one look at the evidence presented and concluded definitively that the case was not well-founded as required by the Code of Conduct. It just made no legal sense to charge the Minister and any second rate lawyer would know this. The NPA were continuing a prosecution despite the fact that it was not “well-founded upon the evidence reasonably believed to be reliable and admissible” as required by the Code of Conduct.
This means the NDPP could have intervened before the decision to charge Minister Gordhan was taken because those who were looking into this case had failed to adhere to the policy directives contained in the Code of Conduct. Yet, not only did Abrahams fail to do so, he also misled the nation by claiming that he had no authority to do what section 179(5)(c) of the Constitution, read with section 22(2)(b) of the NPA Act, authorised him to do.
On the face of it, the failure of Abrahams to act in a case in which he obviously took a keen interest and in which his prosecutors clearly failed to comply with policy directives raises questions about the conduct of the NDPP himself. Does this serious failure on the part of the NDPP make him vulnerable to removal from office?
In terms of section 12(6) of the National Prosecuting Authority Act the President may provisionally suspend the NDPP (or a Deputy National Director) from his or her office, pending an enquiry into his or her fitness to hold office. The President may then remove him or her from office on, amongst others, the grounds of misconduct or on account that he or she is no longer a fit and proper person to hold the office.
Parliament will then have 30 days to confirm this removal from office. This means the tenure of Adv. Abrahams could effectively come to an end (after the relevant processes are followed) if a court declares that he is no longer a fit and proper person.
Alternatively, the President and Parliament can throw Adv. Abrahams under the bus if an enquiry finds that he made himself guilty of misconduct in the way he enthusiastically pursued an unwinnable case against the Minister of Finance and failed to intervene when it was clear to the whole world that his prosecutors continued a prosecution when there was not sufficient evidence to secure a conviction.
Whatever happens, it is difficult to see Adv. Abrahams recovering from the disastrous decision to prosecute the Finance Minister on trumped up charges.BACK TO TOP