Are the Hawks still capable of neutrality?

If Pravin Gordhan is probed in connection with the 'rogue unit' at Sars, even if it was okayed by Trevor Manuel, would Des van Rooyen return as finance minister? (David Harrison, M&G)

If Pravin Gordhan is probed in connection with the 'rogue unit' at Sars, even if it was okayed by Trevor Manuel, would Des van Rooyen return as finance minister? (David Harrison, M&G)

The Hawks appear to have a fine sense of priority. It is trite to say that the country has been suffering from corruption for a very long time. Former president Thabo Mbeki reported recently on shocking levels of illicit financial flows – close to $25-billion in the case of South Africa for the period 1970 to 2008.

Hardly a week goes by without a credible report of acquisitions of corporations or tenders won by the usual suspects.
But the Hawks show scarce interest in these areas of concern. Now we know the reason: the Hawks need all their resources to investigate a so-called rogue unit that used to operate as part of the South African Revenue Service (Sars).

Being a matter of such importance, the Hawks exhibited the utmost care and diligence. The issue of this “rogue unit” has been peddled in some media for a long time.

Almost 18 months have gone by since the public learnt that Sars commissioner Tom Moyane had suspended senior Sars officials Ivan Pillay and Pete Richer because of their alleged involvement in the unit.

Through the Sunday Times, in particular, the public learnt of at least two reports commissioned by Sars, which were presumably confidential, concerning the legality of the unit.

The Hawks were carefully examining these reports with a fine-tooth comb. Only such diligence before taking action can account for the coincidence of writing a letter about this unit, with 27 questions, to Finance Minister Pravin Gordhan shortly before he was to deliver the most crucial budget speech since the dawn of democracy.

An alternative explanation is simply too awful to contemplate for those deeply invested in a democratic South Africa. It amounts to the following: Gordhan was foisted upon a most reluctant executive. After the financial disaster that followed the firing of Nhlanhla Nene as finance minister in December, it is economically and politically hugely unwise to fire Gordhan, even if he is not as courteous to the Gupta family as his predecessors were.

Yet this narrative runs on: if the Hawks could charge Gordhan with some crime relating to the establishment of the Sars unit, even if it was approved by the then minister of finance, Trevor Manuel, not Gordhan, or at the very least can claim that there is a prima facie case against Gordhan, the president could ask Gordhan to step down.

The justification would then be: “Let the law take its course.” The way would then be open to reappoint the man whom the president considers to be the most qualified finance minister available, Des van Rooyen.

Dear reader, I am sure you will dismiss this alternative reading as the worst form of political fiction, one that contains not a scintilla of truth. Yet the problem we confront in South Africa is the extent to which we, as citizens, can rely on key institutions – in this case the Hawks and the National Prosecuting Authority (NPA). For the constitutional model we adopted 20 years ago to operate, one of the key requirements must be that the institutions that uphold the legal system, including the police, the Hawks, the NPA and the judiciary, should operate without fear or favour. Their sole objective should be to act as guardians of the law. Sadly, only the judiciary still remains beyond reproach, courageously fulfilling its mandate.

Thanks to a series of cases brought by Hugh Glenister, the public is aware that the independence of the initial anti-corruption unit, the Scorpions, was watered down when it was replaced by the Hawks. The empowering legislation finally passed legal muster after a number of visits to the Constitutional Court.

The NPA has received a number of unfavourable reviews, thanks in particular to the comings and goings in the position of its national director.

Most recently, Willie Hofmeyr, a very senior member of the NPA, deposed an affidavit in a case involving an application to remove Nomgcobo Jiba, deputy head of the NPA. In the affidavit, Hofmeyr said: “I have come across efforts by politicians to manipulate the NPA for their factional purposes, which I have strongly opposed and exposed.”

He added that the conduct of the current NPA head, Shaun Abrahams, “suggests ... that there is a systematic pattern of protecting ... Jiba and others improperly, not just in this case, but in others as well. It suggests that he [Abrahams] has chosen to align himself with their agenda.”

These are very serious allegations and do little to enhance the legitimacy of this vital institution. Small wonder, then, that there is anxiety about whether an investigation into the alleged “rogue unit” at Sars would be free of fear or favour.

Serjeant at the Bar

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