/ 21 October 2016

Secret Hawks doc: NPA boss Shaun Abrahams grabs at straws

Feeling the heat: Shaun Abrahams appears desperate to find charges that will stick.
Feeling the heat: Shaun Abrahams appears desperate to find charges that will stick.


An “information note” classified as “secret” and addressed to Hawks head Mthandazo Ntlemeza shines light on other dubious charges that might be brought against Minister of Finance Pravin Gordhan before he appears in court on November 2.

Containing many factual mistakes, the letter signed by Crimes Against the State (Cats) commander Brigadier Nyameka Xaba purports to update Ntlemeza on the “status quo of the Sars [South African Revenue Service] rogue unit investigation”.

Xaba’s letter surfaced as an unprecedented quorum of political heavyweights, including several ANC national executive committee members, civil society, business and a cross-section of the public rallied to Gordhan’s side, which is likely to culminate in a mass display of support when the minister appears in court.

Many have accused President Jacob Zuma of being behind the prosecution of Gordhan, with National Prosecuting Authority (NPA) head Shaun Abrahams seen as but a lackey and the case against the finance minister universally regarded as “flimsy”.

After a torrid week, Abrahams will want to hit back hard. But whether the Hawks’s investigation will hold up to scrutiny seems doubtful.

The Hawks have finished their “Sars rogue unit investigation” and that into the “ex-Sars commissioner (PG)”, Xaba says in his letter.

This was confirmed by Hawks spokesperson Brigadier Hangwani Mulaudzi. “Since August, the NPA did not refer the docket back to the Hawks. They have had it since and we did not investigate alternative or extra charges,” he said.

But NPA spokesperson Luvuyo Mfaku said Abrahams had indicated that the investigation into the Sars rogue unit is ongoing. “We cannot talk about additional charges before that process is completed. It is baseless to assert that the NPA is working on new charges,” he said.

The official document, delivered to Ntlemeza in August, refers to Gordhan only as “PG”.

According to Xaba, his list of sins and “possible charges” to be levelled against him relate to:

  • “Fake ID cards”, purportedly used by Sars members “during operations”;
  • Transgressions of the Executive Members’ Ethics Act; and
  • Gordhan “mysteriously” endorsing a pension fund payout to former Sars deputy commissioner Ivan Pillay.

The “fake ID cards” relate to allegations in the Sikhakhane report, which revealed the existence of an alleged “covert” and possibly rogue Sars unit, which was variously named over several years.

All involved strenuously dispute that fake ID cards were used in the unit’s operations or that the unit was covert and rogue.

Xaba found Gordhan’s signature on the cards, but a digital copy of Gordhan’s signature was used on every Sars official’s identity card at the time. He clearly didn’t sign every card himself.

Even if the unit was found to have used the cards and even if they were faked, the link to Gordhan is tenuous.

Xaba does not explain how Gordhan breached the Executive Members’ Ethics Act, although it might relate to the establishment of the unit, authorised at the time by Gordhan (then Sars commissioner) and Trevor Manuel (then minister of finance).

The investigators also seemingly missed that the unit was set up under the Customs and Excise Act, which, according to several customs and excise specialists, provide officials in some cases with wider powers than even the police.

There is a real fear in the Zuma camp that the “November 2 movement” could have far-reaching repercussions, including all the way up to the presidency.

Abrahams this week “invited” Gordhan and his former colleagues at Sars, Pillay and Oupa Magashula, to make further “representations”. The trio were charged last week with fraud relating to a pension payout to Pillay. Theft was the alternative charge.

Abrahams’s hour-long press conference last week, at which he took ownership of the decision to prosecute Gordhan and at which he berated journalists for asking questions he found offensive, was meant to assert his power and uphold the dignity of his office.

The exact opposite has happened.

Abrahams’s case against Gordhan, Pillay and Magashula was described as “unwinnable” and “flimsy” by some of the brightest legal minds in the country, including advocate Nazeer Cassim SC, Cathleen Powell, a senior lecturer in the University of Cape Town’s department of public law, constitutional expert Pierre de Vos and Werksmans lawyer Bernard Hotz.

Abrahams also seems to lack the support of his colleagues in the NPA. He is apparently so sensitive about this that the slightest show of support for Gordhan from within his own ranks, such as sharing messages on social media, has been harshly criticised and he has demanded explanations.

The unfolding events have left Abrahams scrambling and this week he suddenly passed the ball to the special director of public prosecutions, Torie Pretorius, who heads the priority crimes litigation unit – although Abrahams has often asserted “the buck stops with me”. In his letter inviting Gordhan to make representations by 5pm on Tuesday this week, Abrahams says the decision to prosecute him was made by Pretorius.

Hotz said: “One would like to believe that a decision as important as this would carry the full knowledge, blessing and consideration of Abrahams, the highest person in that office. It shows proper detailed legal thought.

“Turning around now saying ‘it wasn’t me’ makes a mockery of that office, especially in a case of such dramatic impact on the well-being of the public and economy of this country.”

Panic at the NPA was exacerbated by Gordhan’s and Pillay’s refusal to meet Abrahams, setting off a flurry of frantic phone calls and reported meetings between Abrahams and people behind the scenes desperately trying to broker a compromise.

Amplifying the NPA’s anxiety, it seemingly erroneously announced it had received representations from Pillay. But Mfaku dismissed the claims. He said it was a matter “the lawyers and their clients should sort out between themselves”.

Meanwhile, civil society has made calls for the General Council of the Bar to investigate Abrahams’s extraordinary flip-flop and possible abuse of process.