On the version of the facts and the law provided to Pravin Gordhan by the Hawks themselves, the Minister did not commit any criminal offence. Requesting the Minister to provide a “warning statement” to the Hawks is therefore without a doubt an unlawful form of harassment. Those who urge the Minister to let the law take its course and to provide a warning statement to the Hawks are therefore urging the Minister to legitimise an egregious abuse of power and to forfeit his constitutional rights.
The law is not an exact science. Sometimes there will be reasonable disagreement among lawyers on whether certain acts, if proven beyond reasonable doubt, would constitute a criminal offence.
The question of whether the claims by the Hawks, if proven beyond reasonable doubt, would render Gordhan guilty of criminal offences, is not such a case. No honest lawyer who has read the letter sent to the Minister will be able to argue that the facts and the law cited – even if proven beyond a doubt – establish even a prima facie case of criminal guilt on the part of the Minister.
The Hawks cite three different laws which they claim form the legal basis for the criminal investigation against him.
First, the Hawks cite section 1 and section 34 of the Public Finance Management Act 1 of 1999 (PFMA) as a legal basis for a criminal investigation against him. Section 1 and 34 of the PFMA state that “unauthorised expenditure” only become a charge against a Revenue Fund in certain cases. Section 34 does not contain a prohibition that could possibly form the basis for a criminal offence.
If you Google the PFMA and search for “Offences and Penalties” this will take you to section 86 of the Act. If you have kept an open mind up to this point, you will be in for a shock. Section 86 does not mention section 1 or 34 of the PFMA. Although it creates various other criminal offences, any possible breach of section 1 or 34 is not rendered a criminal offence.
This means the Hawks are claiming to investigate breaches of the PMFA which are not rendered criminal offences. Relying on section 1 and 34 of the PMFA to justify a criminal investigation is therefore at best bizarrely incompetent and at worst an obvious abuse of power. As the Hawks cannot investigate something that could not – even if proven beyond reasonable doubt – constitute a criminal offence, the Hawks are acting outside of the law. They are lawless.
Second, the Hawks letter refer to section 3 of the National Strategic Intelligence Act 39 of 1994 as a legal basis for justifying a criminal investigating against the Minister of Finance. I have explained before that section 3 (read with the relevant definitions in section 1) of the Act does not cover the establishment of a unit to gather covert intelligence in South Africa.
Section 3 regulates the gathering of “departmental intelligence” which is defined as intelligence about “any threat or potential threat to the national security and stability of the Republic which falls within the functions of a department of State, and includes intelligence needed by such department in order to neutralise such a threat” It does not deal with the covert gathering of other types of intelligence. The section also applies only to security agencies and not to other Departments or institutions like SARS.
But even if one tortures the text of section 3 to somehow cover the establishment of the intelligence gathering unit in SARS within its ambit, there is another problem. Time for Google again. Download the Act. Search for “Offences and Penalties”. The conscientious reader is in for another shock. He or she searches again. He or she downloads the regulations issued in terms of the Act just to make sure. Still nothing.
Congratulations. Unlike the Hawks, the conscientious citizen has now established the blindingly obvious fact that section 3 of the National Strategic Intelligence Act does not create any criminal offences. The Hawks are therefore abusing their power and are investigating the Minister for a breach of a legal provision that does not constitute a criminal offence.
This is not an opinion. It is a fact.
Third, the Hawks allege that the Minister is being investigated for breaches of section 3, 4 and 10 of something they call the Prevention of Corrupt Activities Act 12 of 2004. Do a Google search again.
You will discover that no such Act exists.
But the conscientious citizen wishes to give the Hawks the benefit of the doubt despite the clear evidence that they are abusing their power. He or she discovers that there is a law called the Prevention and Combatting of Corrupt Activities Act 12 of 2004. The citizen also discovers – at last! – that sections 3, 4 and 10 of the Act do create criminal offences.
But now the citizen goes back to the sections and discovers that each section contains two broad requirements. First, for a breach of any of these provisions to have occurred the state must prove beyond reasonable doubt that the accused person offered a “gratification” to another person.
As “gratification” is broadly defined the citizen gives the Hawks the benefit of the doubt again and accepts the dubious claim made by the Hawks that the Minister offered a “gratification” to Ivan Pillay when he approved the early retirement of Ivan Pillay and then approved his re-hiring.
The conscientious citizen, still giving the Hawks the benefit of the doubt – might think that the Hawks (on their own version of the facts contained in the letter) may at least have a small chance of proving that the Minister has acted in breach of the Prevention and Combatting of Corrupt Activities Act. But now the citizen goes back to section 3, 4 and 10 and discovers that these provisions contain a second leg that must be satisfied before a crime is committed.
These sections require the state to prove that the accused offered or gave a “gratification” with the intention of getting another person to act in an illegal manner or to abuse his or her position.
Now the conscientious citizen starts to worry. In their letter to the Minister, the Hawks set out the facts “at our disposal at the moment”. I have taken a screen grab of their letter containing the facts that the Hawks claim they have at their disposal:
As a conscientious citizen you will read and re-read the facts which, if the Hawks is to be believed, provides the factual basis for an investigation into breaches of sections 3, 4 and 10 of the Prevention and Combatting of Corrupt Activities Act. But the facts at the disposal of the Hawks by their own admission contain no allegation that the “gratification” (if it was one) was offered with the intention of getting any person to do something illegal or to abuse their position.
On their own version, the Hawks are not in possession of any facts that can prove the second leg of the crime of corruption. This means there is no basis for the criminal investigation of the Minister for breaches of the Act. The necessary conclusion is that the Hawks are thus abusing their power.
The Hawks themselves have thus admitted in their letter to the Minister (but maybe they are not bright enough to realise this) that they have no factual or legal basis to pursue any case against the Minister of Finance. They have by implication admitted that they are abusing the law to persecute the Minister.
Now the conscientious citizen is truly worried. When will the Hawks abuse their power and come after one of us?
How would any citizen deal with such an egregious abuse of power by such a powerful body who has seemingly gone rogue? (It turns out it is the Hawks and not SARS, who has gone rogue.)
Well, it is at this point that a citizen may remember that he or she has constitutional rights which can be relied on to protect them against the abuse of power by a powerful crime fighting unit.
To wit, such a citizen will recall that section 35(3)(h) of the Bill of Rights states that every accused person has a right to a fair trial, which includes the right “to be presumed innocent, to remain silent, and not to testify during the proceedings”. Such a citizen may be aware what the Constitutional Court said about this right in Thebus and Another v S (CCT36/02)  ZACC 12; 2003 (6) SA 505 (CC); 2003 (10) BCLR 1100 (CC) (28 August 2003):
“The rights to remain silent before and during trial and to be presumed innocent are important interrelated rights aimed ultimately at protecting the fundamental freedom and dignity of an accused person. This protection is important in an open and democratic society which cherishes human dignity, freedom and equality. The protection of the right to pre-trial silence seeks to oust any compulsion to speak. Thus, between suspicion and indictment, the guarantee of a right to silence effectively conveys the absence of a legal obligation to speak.”
To demand that the Minister answer the questions from the Hawks is therefore to demand that the Minister compromise his dignity and forfeit his constitutional rights to aid and abet an organisation that is flouting the law. It is a request for the minister to have his rights flouted. A bit like asking a wife to allow her husband to hit her in the face repeatedly – just because the husband feels like it – and then to say: but the husband could later be convicted of assault, so why don’t you just let him assault you, you are flouting the law!
The right to remain silent becomes ever more important in a situation like the present where the Hawks are acting beyond the law and abusing their power to persecute the Minister for acts which – even on the version provided by the Hawks – could not possibly constitute criminal offences.
The right protects the Minister against the egregious abuse of power by the Hawks. Those who demand that the Minister co-operate with the Hawks are therefore not only demanding that he should forfeit his rights but also that he should legitimise a sham process that clearly constitutes an abuse of power.
It is at this point that section 17DA of the South African Police Services Act becomes relevant. It allows the National Assembly to remove the National Head of the Hawks (whom a court has already found to be dishonest and a liar) on the ground of misconduct, incapacity or incompetence.
Given my explanation above, I cannot imagine anyone disagreeing that the Head of the Hawks is both guilty of misconduct for abusing his power and incompetent (for abusing his power in such an amateurish fashion). Surely two thirds of the members of the National Assembly will support such a removal as required by section 17DA(4) of the Act?
The members of the National Assembly that spearheaded the Nkandla probe in a doomed attempt to protect President Zuma could surely be persuaded (by the President or by other senior leaders inside the governing party) to initiate the Hawks boss’ removal from office.
A failure to do so will be telling. DM
Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.
"A long habit of not thinking a thing wrong gives it a superficial appearance of being right and raises at first a formidable outcry in defence of custom. But the tumult soon subsides. Time makes more converts than reason." ~ Thomas Paine