Shaun Abrahams during a press briefing at the NPA offices in Pretoria in May.
Occasionally a public servant fulfils all the expectations that he or she promised when appointed to his or her post. Such a person is Shaun Abrahams, the national director of public prosecutions (NDPP). Described by at least one commentator as a “legal nobody” on the strength of a pedestrian career until his appointment, it was feared that Abrahams would fail to restore the National Prosecuting Authority (NPA) to a position of much-needed public legitimacy.
The early signs were ominous, in particular the press conferences in which he rather pathetically (in the old Greek sense of the word) insisted that the NPA would operate without political interference, notwithstanding his determination to resist a prosecution of President Jacob Zuma and his defence of his deputy, Nomgcobo Jiba, who the high court has subsequently struck off the roll.
But Abrahams ensured that he was able to fulfil entirely the expectations of his appointment when he so grandly announced that he was charging Minister of Finance Pravin Gordhan on counts of fraud and theft, stemming from the retirement granted to then deputy head of the South African Revenue Service (Sars) Ivan Pillay and the consequent R1.1-million that Sars paid to “top up” Pillay’s pension in consideration of his accepting a contract after retirement.
Let us leave aside Abrahams’s unseemly theatrical performance, hardly compatible with an NDDP treating the case as a criminal matter rather than a political case. The merits of the charges surely require some clear justification, which was manifestly absent from Abrahams’s long-winded rationalisation for his decision.
The charges are based on crimes of fraud and theft. Yet even Abrahams was compelled to concede that Gordhan received no benefit from the contract granted by Sars to Pillay, and hence there was no basis for a corruption charge. Briefly, to prove fraud on the part of the minister, the NPA must prove beyond a reasonable doubt that Gordhan was guilty of unlawfully and intentionally making a misrepresentation that caused prejudice or potential prejudice to another (presumably, in this case, Sars, and hence the state).
But if, as has already been shown in the media, this practice is widely adopted by many departments of the state, the approval given by Gordhan in the case of Pillay hardly seems to be misrepresentation. It may be that this widely adopted practice is not entirely compatible with the provisions of the Public Finance Management Act, but then the Act has internal mechanisms to deal with the problem.
Similar questions arise when the charge of theft is examined. The definition of theft includes the requirement of unlawfully and intentionally appropriating movable corporeal property, coupled with the intention of depriving a person entitled to the possession of this property. Again, given the nature of the practice in public administration and the fact that, in consideration thereof, Pillay agreed to conclude a fresh contract with Sars, the legal basis for the charges appears to be paper-thin at best.
Abrahams himself may not be beyond the reach of the law. In our law, there is an available action based on malicious prosecution. As the Supreme Court of Appeal noted in 2007, a defendant such as Abrahams would not be liable in respect of a delict of malicious prosecution if he held a genuine belief that the guilt of those charged was founded on reasonable grounds; that is, where reasonable and probable cause for the arrest or prosecution exists, the conduct of the defendant will not be regarded as unlawful.
But if, to the contrary, there is no legal basis for these charges, as appears to be the case, then Abrahams may well be in serious trouble. In short, if the charges are found by a criminal court to have no legal basis, a case based on malicious prosecution is possible.
In an era of class actions, the loss on investments that were caused by a malicious prosecution may mean that Abrahams could face a claim running into billions of rand from a class of litigants.
Perhaps more disturbing is the fact that, as this seemingly problematic set of charges occupies the NPA and the Hawks, the citizenry reads of serious allegations of corruption in respect of the conduct of Des van Rooyen. It has been claimed that he met the Guptas the night before his appointment as minister of finance and arrived at the treasury the next day with two Gupta-linked advisers.
These are mere allegations and Van Rooyen still has to provide his version. But here are some extremely serious allegations in which, at the very least, one would expect the Hawks and the NPA to show considerable interest. If that weren’t enough, the Hawks remain deafeningly silent over the allegations against Sars deputy commissioner Jonas Makwakwa who, it has been claimed, was in receipt of vast sums of unaccounted for cash.
The law and the authorities tasked with enforcement need to be reminded that they exist to curb corruption and not to act as political instruments with a selective policy of action.