Another day, another twist in the endless and hugely costly SARS “rogue unit” saga that has not only diverted the resources of the country’s National Prosecuting Authority (NPA) and the Directorate for Priority Crime Investigation (the Hawks), but has damaged the country’s reputation and financial markets and undermined the faith of citizens in law enforcement agencies. And now, the public posturing between the two unexpected opponents, NPA boss Shaun Abrahams and Hawks acting head, Lieutenant-General Mthandazo Ntlemeza, in a series of acrimonious letters with regard to the charging of Pravin Gordhan and others has stirred up a veritable hornet’s nest. The sting in the tail? The possible reinstatement of those pesky 783 charges. By MARIANNE THAMM.
Let’s just cut through the fly-infested floater that has bobbed all year long through the country’s body politic. None of this would have happened – this public and damaging “war” between accidental Minister of Finance Pravin Gordhan and his former SARS colleagues Ivan Pillay and Oupa Magashula, the NPA and the HAWKS – if SARS Commissioner Tom Moyane had not walked into a Brooklyn charge office in March 2015 and lodged CAS 427/05/2015.
The fallout from this single determined and ill-considered decision (one that forms part of the larger narrative of state capture) by the man President Jacob Zuma had catapulted to head the country’s revenue service has had serious repercussions at the highest levels.
Not only did a squadron of long-serving SARS employees lose their jobs in the aftermath of untested charges of a “rogue unit” (advanced in a series of articles in the Sunday Times) while living with the threat of criminal action trailing them like a bad odour, but so to0 have the country’s financial markets suffered. The sorry saga has also left the reputation of the NPA and the Hawks, which was threadbare to start with, in complete tatters.
But there is a dim flicker of light in the extraordinary exchange of letters between Abrahams and Ntlemeza that form part of Abrahams’ answering affidavit in a case brought by the Helen Suzman Foundation and Freedom Under Law.
On November 9 the HSF and FUL filed the urgent application to order President Zuma to suspend Abrahams, Dr Torie Pretorius, head of the Priority Crimes Litigation Unit, and Adv Sibongile Mzinyathi, DPP head for North Gauteng, pending an inquiry into their fitness to hold office. Sections of the National Prosecuting Act enable President Zuma to do so. A full bench will hear the application on November 24.
In their court papers HSF and FUL state, “The National Prosecuting Authority, acting through these three officials, brought obviously baseless criminal charges against Finance Minister Pravin Gordhan, Mr Ivan Pillay and Mr Oupa Magashula. This undermined respect for our criminal justice system and punched a hole in the economy. After unprecedented public outrage, Adv Abrahams withdrew the charges.
“All of this demonstrates that Adv Abrahams and his two colleagues are unfit for office. No competent prosecutor would have brought the charges, or would have defended them for as long as Adv Abrahams did. He should apologise and resign, but he has refused to do so.”
Abrahams, Pretorius and Mzinyathi yesterday filed their responding affidavits with the court. And while Abrahams’s submission is long and winding (it runs to 264 pages) in its justification of his powers and the decisions he has taken, it is the letters between Abrahams and Hawks head Ntlemeza that are most enlightening (and dare we say potentially arse-saving for Abrahams).
It is no accident that Abrahams, who is having, should we say, reputational trouble at present – trouble that might follow him into a post-Zuma South Africa – has made these letters public.
Abrahams also included letters to himself, Pretorius and Mzinyathi dated Monday, November 14, from President Jacob Zuma in accordance with the HSF/FUL application and affording them the “opportunity to make written representation as to why I should not place you on suspension pending the outcome of the enquiry into your fitness to hold office. Such representation must reach my office before 28 November 2016”.
And while some have read this as Zuma throwing Abrahams under the bus this is unlikely as it is more of a procedural legal matter with the President covering his back.
Included also is Abrahams’ October 17 letter to Gordhan’s attorneys explaining that it was Pretorius and not he who had decided to press on with the charges.
That was, of course, until the appearance of the exculpatory Symington Memorandum and the SARS boardroom hostage hustle involving Moyane and some senior Hawks officials. That little drama will also soon play out in full public view.
The communication between Ntlemeza and Abrahams begins on October 18 when the Hawks head responds to an invitation by Abrahams to “make representations” to the NPA. Ntlemeza replies, no thanks, we’ve done a sterling job and have nothing to add.
On October 31, after reports that Abrahams would be withdrawing the charges surfaced in the media, Ntlemeza wrote back saying he felt he had – in not so many words – been ambushed by Abrahams.
“We learn through media reports that at the time when you wrote this letter you had received representations from some of the accused in this matter, Mr Oupa Magashula and Mr Ivin (sic) Pillay.
“In this regard we would like to enquire whether these media reports are true and if so why you did not disclose to us that you received those representations; request us to make our input as the investigative agency responsible for this matter and clearly a person relevant in terms of Section 22 of the NPA Act; furnish us with a copy of the representations you received to enable us properly to consider them when we make our input?” quizzed Ntlemeza.
The Hawks head continues that in his “considered view” if the rumours were indeed true “your actions are contrary to the imperatives of section 41 (1) h of the Constitution which you dealt with at length in announcing the decision that the accused are to be charged with fraud some weeks ago”.
Then a body blow.
“Further it is our considered view that your decision is not in good faith on evidence that we have gathered as an investigative agency in the matter. Rather it seems that you make this decision based on the noise by politicians, civil society lobby groups and the media sympathetic to the accused.”
Ntlemeza adds, “These groups have falsely accused the Hawks and the NPA in the public domain of pursuing the case against the accused persons for political purposes and on instructions from the political masters, which is utter nonsense.”
It’s a long ramble. There’s reference to Ntlemeza being “extremely concerned about your reported prevaricating stance” and reminding Abrahams that the Hawks have handled “many investigations of fraud and theft” and then basically concluding that “we think it would be improper for you as NDPP to stall or withdraw the prosecution”.
Kind regards and all that.
November 8: Abrahams, clearly seething, writes back.
“Dear General Ntlemeza” it starts, followed by a few references to the previous letters and then, wham: “I find the tone of your aforementioned letter extremely disconcerting and contrary to the spirit espoused in the provision of section 41 of the Constitution.”
Then a little lesson on who gets to do what in this game.
“I deem it prudent to record that the power to institute criminal proceedings on behalf of the State and to carry out any necessary functions incidental thereto is constitutionally entrenched and vested in the National Prosecuting Authority.”
Then the important bit that the head of the NPA has to act without fear or favour, something Abrahams has been accused of not doing which is why all this is out here and you are reading it right now.
It is here that Abrahams inserts again into the public narrative that he is indeed worthy of the mantle.
Abrahams tells Ntlemeza that he “takes umbrage” at the “very serious allegations you levelled against me of not having acted in good faith. Speaking of good faith, kindly advise me how did it come about that the memorandum of Mr Symington, by way of example, only surfaced on 14 October 2016 when Freedom Under Law and the Helen Suzman Foundation wrote to me?”
*drops mic *
The suggestion that he [Abrahams] had withdrawn the charges because of the “noise” was “completely incorrect and ill informed”, the NPA head fumed.
And then the final bitch slap: “Your legal and constitutional mandate does not permit you to advise me when to withdraw matters and/or when to proceed with prosecutions. I insist that you refrain from any further communications or conduct to this effect, failing which will have serious repercussions.”
Ntlemeza exposed as the blunt instrument – Abrahams as the misunderstood hero.
In May this year Abrahams announced that the NPA was appealing a High Court judgment ruling that President Jacob Zuma’s 783 charges of corruption must be reinstated. It took years for the court to make that ruling. Years and millions in legal fees.
Abrahams, who has now found his voice, might very well decide that the next fuel stop on his road to redemption is withdrawal of the NPA appeal, an act through which No 1 will become No 783 and spend his retirement in a courtroom.
Our man with the eyebrows that launched a hundred cartoons might suddenly have come to realise that he indeed has that power.
Will he use it?
That’s the question.
Will the wily President Zuma pick up on Abrahams’ newly reconstituted backbone and suspend him, get him out of the way and install yet another head of the NPA who will not serve out his/her contract?
Out here though, in the real world, where it matters, things are pretty wretched.
Just this week in Cape Town a manager who worked for an establishment owned by alleged tax evader Mark Lifman was shot dead at point blank range in the centre of the city. Elsewhere, judges in the country’s courts are offering rulings slamming the poor quality of the work of the NPA and SAPS when it comes to serving the country’s citizens, those who have found themselves victims of violent crimes, fraud and all manner of chicanery.
On October 3 this year, Judge JJA Mocumie in a Supreme Court of Appeal judgment in relation to an appeal by a man who had been given a life sentence for rape criticised the “lackadaisical manner in which the State treats victims of violent crime, particularly rape. If this is not dealt with decisively, there will soon come a time when the State will be held accountable for this failure of its duty, by victims of violent, particularly sexual crimes such as rape.”
This stands in stark contrast to Minister of Justice and Correctional Services, Michael Masutha’s comments on November 11 blowing hot air up the fundament of the NPA, saying that its “good work” should not be “undermined by recent events”.
“The organisation has a very significant role to play in administering justice every day. Let us support the NPA and its prosecutorial team to do their work, without fear, favour or prejudice,” said the minister.
Well, tell that to the judges who sit daily in the country’s courts bearing witness to amateurish and shoddy work.
Time for redemption, one way or another. Stay tuned. DM
Photo (from upper left clockwise): President Jacob Zuma (EPA), SARS commissioner Tom Moyane (GCIS), NPA head Shaun Abrahams (NPA) and the Hawks acting head Mthandazo Ntlemeza (News24).
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