​Only the courts and citizens are left to fend off our lawless state

Commentators have described NPA head Shaun Abrahams as a legal nobody. (Oupa Nkosi, M&G)

Commentators have described NPA head Shaun Abrahams as a legal nobody. (Oupa Nkosi, M&G)

State institutions are under the microscope as the sheer horror at the extent of the cancer in our body politic is exposed. This comes after the publication of the former public protector’s report on state capture and the withdrawal of charges of fraud and theft against Finance Minister Pravin Gordhan and former South African Revenue Service (Sars) officials Ivan Pillay and Oupa Magashula by National Prosecuting Authority (NPA) head Shaun Abrahams.

When South Africa commenced its journey towards the democracy envisaged in the Constitution, it was hoped that principles of transparency and accountability would take root. The events of the past two weeks explode that hope.

Let us begin with Abrahams, the legal nobody, as he has been described by commentators, who was plucked from obscurity by President Jacob Zuma to head the NPA. Hardly a lawyer in the country — save for Abrahams and possibly Torie Pretorius, who joined the criminal-justice system when John Vorster was in his pomp but, according to some, is a proper prosecutor — thought that the charges brought had any chance of obtaining a conviction.

A 101 course in criminal law would have led to the inexorable conclusion that, given the requirements for the crimes of fraud and theft, the charges were based on legal quicksand. And that was before the opinion by Sars lawyer Vlok Symington was produced by the nongovernmental organisations Freedom under Law and the Helen Suzman Foundation. Abrahams trumpeted his “strong case” at a press conference, where he clearly associated himself with the reasoning behind the decision to bring the charges.

Faced with a deluge of criticism and then the discovery of the Symington opinion, Abrahams was compelled to withdraw the charges. That did not stop him trying to smear Gordhan at his second press conference, and it was obviously not his style to acknowledge his monumental blunder and apologise. Abrahams possesses a rudimentary grasp of law and, obviously, the principle of accountability is too much for him.

If this sounds like too harsh a criticism, even of a legal nobody, then consider the following. The NPA charges the minister of finance on the most legally unsustainable basis. Between it and the Hawks, it fails to find what the two NGOs discovered — an opinion from a senior Sars in-house lawyer, which places the matter beyond doubt. Abrahams first associates himself fully with the decision to charge, but then retreats — on the basis that he had nothing to do with the initial decision.

There is an acrid stench floating from the NPA into the public domain. Abrahams is either monumentally incompetent or did not act in good faith — or both. There is simply no other explanation.

To add to the stench, Abrahams is unable to understand that the national director of public prosecutions should not attend meetings at the offices of a political party, and nor should he offer curious explanations of the reasons for his presence there.

If Abrahams possessed a scintilla of understanding of the principle of accountability, he would resign. So would Pretorius. Sadly, we will have to witness the inevitable course of more litigation before Abrahams disappears back into well-deserved obscurity.

Which brings us to the Hawks. Manifestly, this body has been shown up to have been equally incompetent in its inability to discover key documents. More than that, they have revealed their use of an apartheid-style investigation in their treatment of Symington — a style the Hawks chief, General Berning Ntlemeza, must have learnt during his time as a member of the apartheid police force.

It gets much worse, however. The Hawks were meant to be a specialist anti-corruption unit. But this unit appears to be interested only in charging Gordhan on spurious grounds. It does not seem to care about events in Guptaville. Accepted, the state capture report makes no definitive findings, and that the present Sars deputy commissioner, Jonas Makwakwa, has not been found guilty of any crime to date, notwithstanding the most serious allegations, which, if proven, fundamentally compromise the integrity of Sars.

That the Hawks have not investigated any of these cases, all of which concern sustained allegations of corruption, is the most luminous justification for the conclusion that this is a truly corrupted institution incapable of fulfilling its statutory mandate. In the ordinary course of events, a police unit worthy of the name would investigate the conduct of the Hawks. But the Hawks are part of the police, so that avenue is closed.

Twenty-two years ago, the nation proclaimed that the conduct of the apartheid regime would never be allowed to occur again. Twenty-two years later, we awake to find Sars, the NPA and the Hawks, as institutions, degraded by the lack of adherence to constitutional principle. Only the courts and civil society stand against continued lawlessness. For the sake of our future, Abrahams, Pretorius and Ntlemeza must all go.

Serjeant at the Bar

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