One way or another it’s going to be difficult for the national director of public prosecutions to recover, writes Pierre de Vos
When National Director of Public Prosecutions (NDPP) advocate Shaun Abrahams announced on October 11 that the National Prosecuting Authority would charge Finance Minister Pravin Gordhan for fraud for approving an early retirement for a Sars employee, many lawyers pointed out that the NPA stood no chance of securing a conviction.
Abrahams has now belatedly come to the same conclusion and dropped all charges against Gordhan and his two co-accused. In the process he has done immeasurable damage to whatever credibility he might have had.
Since the day he announced the NPA’s decision to charge Gordhan, Abrahams has consistently played a double game. On the one hand he insisted he had nothing to do with the decision and on the other he indicated that he completely supported it.
Thus Abrahams gave a long speech when he announced the NPA was charging Gordhan. In the entirely inappropriate remarks made at the press conference, he unfortunately suggested that the minister might be guilty of other criminal offences relating to the establishment of an investigative unit within the South African Revenue Service (Sars) and that Gordhan might be charged with contraventions of the National Strategic Intelligence Act.
But the legislation doesn’t create any criminal offences and could, therefore, not legally form the basis of a criminal investigation or prosecution against the minister. Neither was the minister charged with any crimes related to breaches of the act.
To comment on any possible contraventions of a law that doesn’t create any criminal sanction is akin to Abrahams suggesting publicly that the president might be guilty of a crime because he was spotted wearing a pink tie.
Abrahams was either monumentally incompetent or he was deliberately attempting to smear the minister with innuendo about alleged breaches of legal provisions that couldn’t possibly constitute a criminal offence.
On October 12 Abrahams told a journalist he was confident the fraud charges against Gordhan and two other former Sars officials would stand up in court.
On Monday, Abrahams announced that he had decided to drop all charges against Gordhan and two others.
Three weeks ago he claimed to be confident that the minister would be convicted. On Monday he stated the opposite. In the intervening three weeks the political ground had shifted.
When asked why he hadn’t interfered before to stop the prosecution or to set aside the decision to charge the minister of finance, Abrahams falsely claimed that he wasn’t permitted to do so.
However, the constitution and the NPA Act allow 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 NPA 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 who 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. The NDPP could also have announced on October 11 that his underlings had decided to prosecute Gordhan but that he would urgently review the decision.
This he didn’t do. He publicly announced the decision to charge the minister and, through various statements, gave the impression that he supported the decision. A public outcry followed the announcement, after which Abrahams, for the first time, suggested he may review the decision.
But Abrahams didn’t 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 December 29, 2010.
In terms of section C of this code, prosecutors should perform their duties without fear, favour or prejudice, and should in particular “take into account all relevant circumstances and ensure that reasonable enquiries are made about evidence, irrespective of whether these enquiries are to the advantage or disadvantage of the alleged offender”.
As the decision to drop all charges against Gordhan makes clear, reasonable enquiries weren’t made about the evidence which showed that Gordhan couldn’t have had the intention to commit fraud.
On the face of it, Abrahams's failure 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 his conduct. Does this serious failure on his part make him vulnerable to removal from office?
In terms of section 12(6) of the NPA Act, the president may provisionally suspend the NDPP from office, pending an inquiry into his or her fitness to hold office. The president may then remove him or her from office on, among others, grounds of misconduct or 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 Abrahams could effectively come to an end if a court declares that he’s no longer a fit and proper person.
Whatever happens, it is difficult to see Abrahams recovering from the disastrous decision to prosecute the minister on trumped up charges.
* Professor Pierre de Vos is the Claude Leon Foundation chairperson in constitutional governance and teaches in the area of constitutional law at UCT