​The Hawks have no case against Gordhan, which is going to be a real test for the NPA

"The Constitutional Court put a firm end to the further litigation by the two justices when they dismissed a second appeal lodged with the court." (Delwyn Versamy, M&G)

"The Constitutional Court put a firm end to the further litigation by the two justices when they dismissed a second appeal lodged with the court." (Delwyn Versamy, M&G)

Without viable public institutions, a country is unlikely to sustain a viable growth path.

That may be of no concern to the practitioners of Zuptanomics but, for millions of South Africans, the corruption of key public institutions can only mean, at best, tepid growth and thus continued poverty, the degradation of dignity and an increasing loss of hope.

Last week the future of key institutions and thus the direction of South Africa’s economic path were in the spotlight. A parliamentary subcommittee chose its candidate for the position of public protector, an office that, thanks to the work of Thuli Madonsela, has been critical to the protection and promotion of the institutional tasks of accountability and transparency.

There was great concern that the ruling party would ensure that Madonsela’s successor would be very different from her to ensure a quiet life for those who fear exposure and censure for wrongdoing related to the public purse.

And, yet, thanks to a transparent process created in part by the activism of civil society, some elements of the media and opposition parties, this did not happen. The nomination of Busisiwe Mkhwebane for the position has been welcomed by all who are concerned about ensuring that the office of the public protector remains a viable, independent institution.

In the same week, the Constitutional Court delivered judgment in a long-running dispute that has raised doubts about the integrity of the judiciary.

About eight years ago, a complaint was lodged by Chief Justice Pius Langa, Deputy Chief Justice Dikgang Moseneke and other members of the Constitutional Court against Western Cape Judge President John Hlophe.
It concerned allegations of interference with a judgment that the court was considering, in which President Jacob Zuma was a party. The two witnesses, Constitutional Court justices Bess Nkabinde and Chris Jafta, launched an inexplicable piece of litigation questioning the status of the judicial conduct tribunal set up to deal with the initial complaint against Hlophe. This delayed the proceedings for nearly two more years.

The Constitutional Court put a firm end to the further litigation by the two justices when they dismissed a second appeal lodged with the court. The case must now be placed before the tribunal and resolved.

Significantly, the court concluded by stating that it was clearly in the interests of justice that the complaint be brought to a conclusion. This was an express recognition of the importance of judicial accountability and the promotion of the integrity of the institution.

But, in South Africa, two important positive moves are usually accompanied by at least one retrogressive step — and so it has again proved.

Major-General Berning Ntlemeza, the head of the Hawks and a man with an impressive record of lying to a court, sent a letter to Minister of Finance Pravin Gordhan summoning him to give the Hawks a warning statement (usually made in response to charges being pursued) in the case regarding the so-called “rogue unit” set up at the South African Revenue Service during Gordhan’s tenure as Sars commissioner. This case, or at least the series of allegations, has come and gone, it appears, and come round again.

Readers will recall that earlier this year Gordhan responded to 27 questions put to him by the Hawks in relation to this matter. In that letter, he set out clear legal reasons why there was no plausible case against him as alleged by the Hawks.

No matter — Ntlemeza has manifestly ignored the law on this, which is clear, and issued a new letter, which looks like less a properly legal proceeding than intimidation.

The Hawk’s action lacks any real legal basis. Take the claim that Gordhan was involved in the setting up of the “rogue” investigative unit, in which the Hawks are relying on the National Strategic Intelligence Act of 1994. Assume that the Hawks can lay out a factual basis for any involvement in illegal action to do with the unit by Gordhan (an allegation hotly contested by the minister), section 3 of the Act, which is the provision that defines the scope of the Act, clearly refers to the performance of functions with regard to the security of the republic.

The term “security” is not expressly defined in the Act, but “national security” receives a detailed definition. From this it is clear that tax investigations cannot, on any basis, fall within the scope of this Act.

In similar fashion, the reliance by the Hawks on the Public Finance Management Act is a serious abuse, because in this case the Act creates no criminal offence.

Contrary to the protestations of some ill-informed journalists and talk-show hosts, there is no basis for any citizen — protected as each of us is by the constitutional right to remain silent — to respond to so obvious a contrived piece of intimidation, particularly when all the questions raised were previously answered.

The Hawks have yet again illustrated the profound danger inherent in institutions losing or compromising their independence from political powers. It is to be hoped that the national director of public prosecutions, Shaun Abrahams, follows the law without favour this time round. Failure to so do will remove any remaining doubts about the independence, impartiality and integrity of the National Prosecuting Authority.

South Africa can ill afford institutions that act out of political rather than legal motives. As so often, the cartoonist Zapiro depicted the cancer eating away at some key institutions in this newspaper last week when he drew the image of Ntlemeza apprehending Gordhan, while the president himself is removing cash from the national safe.

The point is simple: if our institutions act on behalf of political masters, rather than being beholden only to the Constitution, South Africa will plunge further into a spiral of economic devastation.

Serjeant at the Bar

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