South Africa, Politics

Lawfare: Priority Crimes Litigation Unit refuses to give undertaking regarding Gordhan arrest

By Marianne Thamm 6 September 2016

On Monday, Advocate Torie Pretorius SC, the man who has been tasked by NPA head Shaun Abrahams with overseeing several crucial investigations in South Africa, responded to a letter the Helen Suzman Foundation sent last week calling for an undertaking that South Africa's Minister of Finance Pravin Gordhan will not be arrested. Pretorius replied on Monday that he would be violating Gordhan’s right to privacy if the Priority Crimes Litigation Unit disclosed anything at all about the case. By MARIANNE THAMM.

Your letter dated 2 September 2016… has been rerouted to us as the responsible Directorate to deal with,” the letter from Pretorius, who is the Acting Special Director of the Priority Crimes Litigation Unit (PCLU), begins.

Later Pretorius writes that “the matter at hand deals with individuals who had certain roles in the establishment/operations of the High Risk Investigations Unit at SARS. The decision by the National Prosecuting Authority cannot be communicated to a third party in protection of the constitutional rights of the individual concerned.”

In other words, “Piss off, we have a job to do.”

If you look closely at the bottom of each page of the official letter from the PCLU you’ll notice print smaller than the rest of the communication. There someone has opted to offer “inspirational quotes”, so to speak, in the manner of those mass-produced printed diaries bound in pleather with a religious quote for each day of the year.

On the first page of the letter the quote is, “Justice in society, so that people can live in freedom and security” and then on page 2 this little gem, “Guided by the Constitution, we in the National Prosecuting Authority ensure justice for the victims of crime by prosecuting without fear (no comma) favour or prejudice and by working with our partners and the public to solve and prevent crime.”

Beam me up, Kafka.

Last week civil society lobby groups the Helen Suzman Foundation and Freedom Under Law announced that “in the face of growing speculation that the Minister of Finance faces imminent arrest, attorneys acting for Freedom Under Law (FUL) and the Helen Suzman Foundation (HSF) this morning delivered a letter to the Hawks and the National Prosecution Authority (NPA). The letter calls for undertakings, no later than noon on Monday, that the Minister will not be arrested in relation to any of the alleged charges and, if such charges are to be brought, we be given at least 20 days’ notice to apply to court for an interdict. Failing such undertakings, FUL and HSF will exercise their rights in law.”

To this demand, Pretorius replied (at 2.36pm) that “it is unclear in what capacity you send the letter to us. The process at this stage remains between the State, their legal representatives and the individuals concerned.”

On Monday HSF director Francis Antonie hit back, telling Daily Maverick, “We did not write about anybody other than the minister and are not concerned with anything other than the half-baked and comprehensively refuted three ‘charges’ against him on the facts and the law.”

He said what HSF was concerned with and about is that “notwithstanding the minister’s response months ago and the notification to him that he was not a suspect, the threat of prosecution on the self same contentions has now been once again been raised and publicised. The case against the minister is perfectly straightforward. Either the prosecution acknowledges that there is no case or it decides to prosecute. In either event they need not duck behind sterile formalism. Put up or shut up.”

Antonie added that the reaction was consistent only with a “campaign characterised by mala fide, ulterior purpose, hidden agenda, grossly irrational and malicious exercise of state power. Take your pick. The suggestion that somehow the interests and reputation of the minister are being protected by the NPA is cynical in the extreme. As to our standing: As we have made plain, this conduct is causing the country untold harm and should be dealt with without delay.”

One understands the concern about the NPA and the PCLU being used as a blunt political instrument.

In May, Hawks head, Lieutenant General Mthandazo Ntlemeza, sent Gordhan’s lawyers a letter reassuring him that he would not be arrested. Three months later, in August, Gordhan (after answering 27 questions from the Hawks sent in February) was ordered to report to the Hawks’ head offices in Pretoria for a “warning statement”, an order he defied.

On August 25, after the rand plummeted as news of the Hawks’ summoning of the country’s finance minister broke, President Jacob Zuma issued a statement expressing his “full support and confidences in the minister of finance”.

The HSF said President Zuma had “noted the concerns” of civil society and the “negative effect of these matters on our economy” and the “personal pressure on the individuals affected”.

Given all of this, one would expect the president to take action. Unfortunately, his hands are constitutionally tied. According to him, the president “does not have powers to stop any investigations into any individual/s’’ and to do so would be to “intervene unconstitutionally”, said the HSF.

The legal grounds to remove Ntlemeza, who has been branded a liar by a judge, exists, says the HSF.

In a statement titled “Gordhan and the Hawks: What the President can do” the HSF sets out that, “At best, the allegations against Minister Gordhan rest on insufficient facts and a misunderstanding of the law. This is incompetence. At worst, they are an attempt by the Hawks to capture the Treasury for corrupt elites. This is misconduct. The breathtaking weakness of the Hawks’ case against the Minister has been overwhelmingly established by the press, civil society and legal experts”.

When the president said he had no power to intervene, he was mistaken, Antonie added.

The decision to appoint Mr Ntlemeza appears to be irrational. In addition, the campaign against Minister Gordhan reveals that the head of the Hawks is either incompetent or abusing his powers. The persecution of Minister Gordhan poses a grave danger to our economy and our institutions. President Zuma knows this, and he should do something. Fortunately, he can.”

***

The HSF, in the meantime, has been admitted as amicus curiae in the Constitutional Court matter involving Robert McBride, the suspended Executive Director of IPID who has challenged the Minister of Police’s powers to suspend him. McBride won a High Court application which held that the independence of IPID is expressly guaranteed under section 206(6) of the Constitution and that this independence was not adequately protected by legislation which afforded the minister a unilateral power to remove the Executive Director of IPID from office.

Judgment in this crucial matter will be delivered on Tuesday at 10:00.

McBride, as head of IPID, was responsible for an investigation into the alleged involvement of Lieutenant-General Anwa Dramat, then the head of the Directorate for Priority Crimes Investigation (DPCI) and Major-General Sibiya, the provincial head of the DPCI, in the alleged unlawful rendition of four Zimbabwean nationals during 2010 and 2011.

Minister of Police, Nathi Nhleko, suspended McBride and initiated disciplinary proceedings after McBride, based on inconsistencies between an initial report by the investigating officer, which recommended that Dramat and Sibiya should be criminally charged with kidnapping, and a later report by McBride, recommending that no charges be brought against them because of a lack of evidence.

McBride applied to the Constitutional Court to confirm the orders of constitutional invalidity and ancillary orders made by the High Court and emphasised the significance of the express constitutional requirement for IPID to be independent.

He also claims that security of tenure is an essential condition of institutional independence and that it is a recognised requirement for independent police oversight bodies under international law.

Nhleko conceded that declaring the impugned provisions constitutionally invalid would strengthen the independence of the IPID but he has contended that the High Court’s suspended order to set aside disciplinary proceedings against McBride, subject to Parliament’s intervention, is “inconsonant with the doctrine of separation of powers” and that it fails to provide certainty as there is no mechanism in place for parliamentary intervention.

McBride, Dramat, Sibiya and several others were all involved in politically sensitive investigations when they found themselves disciplined, suspended and removed in a pattern eerily similar to that which occurred when the entire top SARS executive were suspended in December 2014.

All these cases are part of a much larger game plan that has become increasingly visible as some in the ruling party who are close to President Zuma and his friends begin to feel the heat. DM

Photo: Minister of Finance Pravin Gordhan (Greg Nicolson)

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