Senior Counsel in the High Court of South Africa, KESSIE NAIDU, writes an open letter to National Director of Public Prosecutions, Shaun Abrahams.
Dear Adv Abrahams,
Throughout the press briefing which you convened on Monday 31 October 2016, which I watched, you reminded me of my favorite toy in my pre-school years… a clockwork clown, particularly in the way it is used to humour me. Like my toy, you exuded confidence in the way you performed your act and seemed to enjoy being the entertainer. What I could not see however was the person or persons who are alleged to be occasionally winding you to dance to their tune and because of whom you have now been thoroughly discredited in the estimation of millions of self-respecting South Africans.
I spent a moment casting my eye over your CV, which appears to be exemplary and highly impressive. Whoever drafted it described you as “a senior officer of the court”, “a person of integrity”, one who “has been seen to administer justice impartially and independently, acting in the interest of the community”, and “has always presented himself in a fair and transparent manner”, “upholding human dignity and fundamental rights”.
Had I read your CV before your press briefing I would have been thoroughly impressed. On the contrary, now, by the national spectacle created by your judgment, or lack of it, I am thoroughly disappointed. I am driven to the view that your CV is nothing but an articulate piece of self-praise.
During your press briefing you spent a considerable amount of time traversing the statutory provisions which formed the subject matter of the charges against Minister Pravin Gordhan and his co-accused (as they were then referred to in the charge sheet), devoting particular attention to how the three accused and their respective legal teams had failed to address a particular clause in the regulations. This you did in your endeavor to highlight the fact that the three accused had not complied with the legal prescripts.
At the end of this legal lecture you breezed into the basis of your reasons for reviewing the decision to prosecute by reference to the absence of the element of intention. Fundamental to your decision for so doing is the opinion of Mr Vlok Symington which provides Gordhan, Ivan Pillay and Oupa Magashula with an unarguably solid defence in law.
According to you, in response to a question by a journalist, this opinion only came to your attention after the charges had been proferred against the three. It is shocking, to describe it mildly, that as the head of an institution which is charged with a serious responsibility, you had failed to make even the perfunctory inquiry about the possible presence of any legal opinion upon which Mr Gordhan and his co-accused might have relied or for that matter even ignored. After all, the accused were at the time of the commission of the alleged offence high-ranking officials at SARS.
With all your experience, expertise and professionalism trumpeted in your CV, it boggles the mind that it did not occur to you to inquire about or investigate this possibility. The most junior prosecutor would have done so, especially since the element of the existence of mens rea or animus is pivotal to proving a common law crime like fraud. If there was such an opinion it would undoubtedly have been used by the accused to rebut the element of intention. Another matter causing me much consternation is the fact that the Symington opinion featured in the labour dispute between Mr Pillay and the SARS. It required no genius to have expected that this opinion would have featured in that hearing. The fact that it occurred to neither you nor your highly skilled underlings who made the decision to prosecute is hard to swallow.
During questions by the journalists you said that you did not make the decision to prosecute but relied on the team consisting of a Doctor of Laws and an advocate in your office. You were asked by a young journalist whether you did not think it appropriate to apply yourself to making the decision rather than leaving it to your subordinates, on account of one of the accused being a minister in the Government of South Africa. You then embarked on a long exposition about equality before the law without addressing the question, either because you did not understand the question or because you did understand it but studiously evaded it. Whichever it is, it speaks volumes about the lack of basic understanding of your duties or it admits the possibility that there existed an ulterior motive.
The question had nothing to do with equality before the law. Had you been on this planet in December last year, you would surely have learnt about the catastrophic, almost unparalleled rapid losses sustained on the JSE, accompanied by an almost unequalled depreciation of the rand when the then Finance Minister, Mr Nhlanhla Nene, was so ignominiously fired from his position by President Zuma and replaced by a relative nobody, one Mr Des Van Rooyen.
At the time, the people of South Africa cried foul. Van Rooyen, Zuma and the Guptas denied complicity. Only now, after the revelations that could probably be used to establish criminal and/or unethical and/or improper actions of one or other or all of those implicated in the Public Protector’s State of Capture report, do we understand why Mr Nene was fired.
The true effect of the financial impact sustained will less likely affect you and definitely not people like Van Rooyen (an alleged Gupta appointee), or the Guptas. The poor and the middle class are the real victims of this kind of diabolical mischief. You should have realised that the charging of Mr Gordhan could more than likely have had the same effect on the country’s financial well-being as when Mr Nene was dismissed.
You should have anticipated the very real possibility that Mr Gordhan might be relieved of his position by Mr Zuma as Minister of Finance on account of his having been charged. In fact, you must have known that there was widespread concern, justifiably so, that the charge against Mr Gordhan was motivated by this ulterior motive. You should have devoted your personal and professional attention to this matter and made the decision yourself for which you should have taken responsibility, being the head of the NPA, instead of dipping your head into the proverbial sand and blaming others. This is what that the young journalist was addressing when he asked you that question, Adv Abrahams.
The surrounding circumstances, however, provoke an inference that is as pungent as it is sinister. That is, you were either not confident about the case in the first place or you knew or ought reasonably to have known it was unlikely to succeed. I say this because, with all the expertise and experience you profess in your CV, you could never have believed that the minister with years of experience as commissioner at SARS and as a minister, would have sanctioned such a payment to Mr Pillay without first obtaining legal advice. All the circumstances suggest as an irresistible inference, if not the only reasonable inference, that you knew about the Symington opinion before the minister had been charged. It is inconceivable that you were not informed about this either by Mr Moyane, the Commissioner of SARS, or the Hawks. It is reasonably possible that you conceived the likelihood that when the Symington opinion surfaces and the public indignation and outrage becomes so overwhelming, you might need to claim the comfort of denying that you made the decision and instead burden others with blame, as you in fact did when you withdrew the charges. You performed so miserably in responding, and even failing to respond, to the questions during the press briefing when you withdrew the charges, I shudder to think how you might perform if cross-examined during any malicious prosecution proceedings that could be brought against you by Mr Gordhan, Mr Pillay or Mr Magashula.
During this press briefing you very arrogantly resisted any invitation to apologise. You refused with a façade of confidence and firmness. Your failure to accept responsibility as the head of the office which made such a monumental bungle is hard to rationalise, except on the basis that you are devoid of humility and leadership. If you take the time to reflect, you owe the country an apology. Being an advocate you owe an apology to the legal profession which you correctly referred to as the “noble profession” in your most recent press briefing to boast your independence by the singular fact that you withdrew the charges. In this way, on that occasion, you betrayed another quality of your personality. You are so intoxicated with your ego that you insult the intelligence of the entire South African nation by attributing the withdrawal of the charges to your independence. I put it to you that you realised that once the drama which unfolded in the HQ of SARS involving Mr Symington, as televised nationally, you had no choice but to withdraw the charges.
Your so-called independence was seriously compromised when you accepted the invitation by the Minister of Justice to meet with him, other ministers and Mr Zuma at Luthuli House, the HQ of the ANC, the day before your office charged Mr Gordhan and his co-accused – purportedly for a meeting to discuss matters relating to the student protests. The timing was too much of a coincidence. Prior to and even around that time there had been a very direct, vociferous and compelling accusation that your strings were being pulled by President Zuma and others.
There has been a constant refrain in the print and social media that you are Zuma’s puppet. Most people formed this view, it seems justifiably so, by the prevailing circumstances. The shenanigans in the office of the NPA relating to your predecessors, particularly by those holding acting appointments, provided ample support for this perception. By now you should be acquainted with the legal term “perceived bias”. It is difficult to comprehend why you would have allowed yourself to go to meet with Mr Zuma at the ANC offices when you knew that the perception was already rife that you were being keyed up like my favourite toy of pre-school days, the clockwork clown, to do the bidding of those to whose tune you are perceived to be dancing.
Adv Abrahams, I do not support the call by those who ask for you to resign. I do not believe that the present process of appointment of your successor, that is, by the sole choice of the president of the country will alleviate our problems if you do resign. You have a mammoth task ahead of you, consequential to the recommendations in the Public Protector’s Report on the State of Capture. The Judicial Commission of Inquiry will probably recommend the prosecution of some of those who are implicated and against whom adverse findings might be made. You will also have to make a decision in due course about the possible prosecution of Mr Zuma on a number of counts of fraud, depending on the outcome of the appeal pending in the NPA.
I urge you to do the right things. Be guided only by your conscience and your duty to the Constitution and self-respecting people of South Africa. Our people, mainly the poor, the hungry and the unemployed, have been suffering the effects of corruption and state capture for too long. If left unchecked it will lead us to ruination. Our country is bleeding. We need people in our country, especially in state institutions like that which you head, to place a premium on self-respect, integrity and independence. For the record of the history of our country, strive to find a place in the chapter which is dedicated to the great champions of our Constitution like Chief Justices Chaskalson, Langa and Mogoeng, and Public Protector, Adv Thuli Madonsela, or you could choose to be relegated to a mere footnote. I wish you strength in all your future endeavours.
Kessie Naidu SC
Photo: South African National Director of Public Prosecutions (NDPP) Advocate Shaun Abrahams reacts during a briefing to the Portfolio Committee on Justice and Correctional Services in parliament, Cape Town, South Africa, 04 November 2016. EPA/NIC BOTHMA
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