The Committee questioned the head of the National Prosecuting Authority, Adv Shaun Abrahams on his decision to drop fraud-related charges against Finance Minister, Pravin Gordhan, former acting SARS Commissioner, Ivan Pillay, and Commissioner Oupa Magashula.
Adv Abrahams explained that the decision to prosecute Gordhan et al was taken in terms of section 24(3) of the NPA Act. While he did not personally make this decision, he was satisfied that a prima facie case had been made out against the accused persons. His lieutenants briefed him on the public interest considerations resulting from the profile of Gordhan et al, and the fragile state of the economy. He was aware that the charges would, on the face of it, appear politically motivated. However, he merely followed the letter of the law and did not intend to cause distress to Gordhan et al when he announced the charges. He denied allegations that he discussed the charges with President Zuma at a meeting held at Luthuli House on Monday 10 October 2016, stating that the Minister of Justice had briefed the President long before this meeting. He insisted that the meeting discussed only the violence that had erupted over the Fees Must Fall campaign. Following investigations and representations from Freedom Under Law, the Helen Suzman Foundation, the accused persons, the prosecuting team, and the SARS Commissioner, he decided to drop the charges against Gordhan et al on 31 October 2016. He expressed concern over potential litigation against him in the light of a petition on 1 November to the General Council of the Bar by the EFF.
A member asked why Adv Torie Pretorius and Adv Sibongile Mzinyathi did not accompany Abrahams to the Committee, given their roles in the charges and the appearance of their names on the list of delegates for this meeting. The DA, EFF, FF+, and NFP members castigated Adv Abrahams for not accepting responsibility for the decision to charge Gordhan et al. They queried his review of the charges only after he had announced the decision to prosecute. They queried his meeting with President Zuma at ANC headquarters at Luthuli House on the eve of the announcement. They asserted that the charges were politically motivated and lend credence to allegations that the state, inclusive of the NPA, has been captured by the Gupta family. EFF and NFP members demanded for Abrahams resignation. Conversely, some ANC members supported him.
Responding, Adv Abrahams explained that he announced the decision to prosecute Gordhan et al because he did not want the decision to leak. He wanted to dispel any notion of political interference. He said that, after reviews, he has agreed with the decisions of the directors of public prosecutions (DPPs) and special directors in 94 cases and disagreed with 16 others. He insisted that there was a prima facie case against Gordhan et al, denied that he took public interest into consideration when he decided to withdraw the charges, and denied that he has been captured by anyone. He insisted that he has discharged his duties as NPA head without fear or favour and will continue to do so. He rejected the call for his resignation and refused to apologise for bringing charges against Gordhan et al. He insisted that he was merely performing his duties in line with the constitutional provision of equality before the law. As he put it, “[W]e will continue to exercise our functions without fear, favour or prejudice, irrespective of station in life of any person and entity”.
The Chairperson declared that the Committee reserves the right to revisit the Gordhan et al matter and closed the meeting.
The Chairperson explained the Committee had summoned the head of the National Prosecuting Authority (NPA), Adv Shaun Abrahams, to explain why he dropped fraud and theft charges brought against the Minister of Finance, Pravin Gordhan, former acting SARS Commissioner, Ivan Pillay, and former Commissioner, Oupa Magashula. As he put it, the meeting is to afford Adv Abrahams “an opportunity to talk to Parliament and the people of South Africa about the turn of events because this Parliament and the people of South Africa cannot afford to have any organisation like the Office of the National Director of Public Prosecutions which is not independent or credible or is not seen as being independent and credible because this office lies at the heart of our criminal justice system”. He gave a brief outline of high profile cases in which the NPA was perceived to have been used to fight factional political battles. Some of these cases are the Zuma and Mdluli cases, which were used to “fight factional battles within the ruling party”. He expressed the Committee’s concern about Adv Abrahams’ independence, saying that some say the NPA has been captured to fight battles within the ruling party. He noted that Ms Breytenbach had written a letter to Adv Abrahams and this was “not acceptable”. The Committee had sought legal opinion on whether Ms Breytenbach can participate in its proceedings and was assured that she could.
Ms G Breytenbach (DA) clarified her letter to Adv Abrahams was in her capacity as Democratic Alliance (DA) spokesperson, clarifying that she did not write on behalf of the Committee. She conceded that her secretary made a mistake by using a parliamentary letterhead.
The Chairperson read Ms Breytenbach’s letter and rebuked her for writing on behalf of Parliament and using parliamentary letterheaded paper.
Ms Breytenbach admitted that her use of a parliamentary letterhead was an oversight.
Ms C Pilane-Majake (ANC) called for the letter to be withdrawn.
Mr W Horn (DA) defended Ms Breytenbach’s letter, stating that the history of the Committee does not indicate an inclusive approach on the Chairperson’s part. He accused the Chairperson of suppressing members of the opposition in issues affecting the NPA. The DA will not apologise for Ms Breytenbach’s letter, and will not play a subservient role to the ANC in Parliament.
The Chairperson restated that Mr Horn and Ms Breytenbach cannot act on behalf of the Committee.
Mr Horn argued that Ms Breytenbach acted in her individual capacity. He restated that the DA will not be suppressed by the Chairperson.
Mr N Matiase (EFF) called for members to take a moment to calm down. He commended the Chairperson for sharing the evolution of the NPA and the transformation it has undergone. He criticised Adv Abrahams for disrespecting Ms Breytenbach by questioning her suitability as a member of the Committee previously. Unlike Adv Abrahams who is appointed, members of Parliament are elected. Adv Abrahams ought to be reprimanded for his conduct and warned never to repeat it again.
The Chairperson called on members to distinguish between in-house matters of the Committee and public matters. The people of South Africa want to hear Adv Abrahams’ account of his handling of charges against Gordhan et al.
Mr S Swart (ACDP) expressed his support for the Chairperson’s use of the word ‘accountable’ given that Adv Abrahams had earlier had a press briefing on why he withdrew charges against Gordhan et al. Adv Abrahams’ invitation to appear before the Committee is in furtherance of his accountability to Parliament in terms of section 35 of the NPA Act: “The prosecuting authority shall be accountable to Parliament in respect of its powers, functions and duties under this Act, including decisions regarding the institution of prosecutions”.
Dr C Mulder (FF+) stated that Ms Breytenbach’s letter ought to be dispensed with. Ms Breytenbach did not concede that she wrongfully wrote a letter on behalf of the Committee. Members of Parliament are entitled to use parliamentary letterheads. If Ms Breytenbach had used a Portfolio Committee on Justice letterhead, the matter would be entirely different. As it is, there is nothing wrong with her use of a parliamentary letterhead.
The Chairperson explained that Adv Abrahams’ briefing to the media is different from the sort of answers the Committee wants from him. He declined a request to make Adv Abrahams present under oath.
Adv Abrahams thanked the Committee for inviting him. He introduced his team as NPA Deputy Director, Dr Silas Ramaite, Acting Deputy National Director of Prosecutions, Adv Thoko Majokweni, and NPA spokesperson, Adv Luvuyo Mfaku.
Adv Abrahams explained that the legal basis of the NPA’s appearance before the Committee is in terms of section 35(1) of the NPA Act. When the NPA last appeared before the Committee, it briefed the Committee on the decision of the Acting Special Director of Public Prosecutions and the head of the Priority Crimes Litigation Unit, Adv Torie Pretorius, taken in consultation with the Director of Public Prosecutions (DPP) of North Gauteng to prosecute the Minister of Finance, Pravin Gordhan, former acting SARS Mr Ivan Pillay, and former Commissioner Oupa Magashula on fraud related charges. He was briefed by the Acting Special Director of Public Prosecutions, together with the Director of Public Prosecutions of North Gauteng (DPP-NG). The decision to prosecute Gordhan et al was taken in terms of section 24(3) of the NPA Act. He was satisfied that a prima facie case had been made out. He was further briefed on the public interest considerations resulting from the profile of Minister Gordhan, along with the fragile state of the economy. He was told that such a decision would, on the face of it, appear politically motivated because of the current political climate in South Africa. In this regard, section 22(4)(f) of the NPA Act requires prosecutors to adhere to the UN Guidelines on the role of Prosecutors. Also, section 9(1) of the Constitution requires equality and fairness. The NPA must abide by the rule of law and international standards to ensure its independence from political influences. The impact of the charges was certainly given serious consideration. The officials concerned advised that this was not an easy decision and due regard had to be given to the effect of the decision. As with all matters in which public interest was a consideration, a careful balancing of all considerations was made. He and the NPA staff give due consideration to public interest, but cannot allow it to affect their overall decision on whether to prosecute or not. They must abide by the rule of law and ensure that their decisions are sound and legally sustainable. He was satisfied that a prima facie case had been made against Gordhan et al. After considering all these factors, he decided to proceed with the prosecution, mindful that a decision not to proceed would erode the rule of law and the NPA’s institutional duty to act without fear, favour, or prejudice.
In terms of section 179(6) of the Constitution, the Minister of Justice and Correctional Services must exercise final responsibility over the NPA. This is further confirmed by section 33(2) of the NPA Act. In compliance with this Act, he subsequently briefed the Minister on the decision taken by the Special Director of Public Prosecutions in consultation with the Director of Public Prosecutions on or about 4 October 2016. He did not seek the Minister’s permission for the prosecutors to proceed with the matter. After the briefing, he requested the Minister to brief the President. He did so because the decision to prosecute had a public interest and involved a sitting cabinet minister. He had done this before in the case involving corruption charges against the former High Commissioner to Australia. He believed the Minister briefed the President in the latter part of that week or the beginning of the next week.
Allegations had been levelled that he discussed the charges with the President at a meeting held on Monday 10 October 2016 at Luthuli House. He denied this allegation, stating that the Minister had briefed the President long before this meeting. On the afternoon of the 10th of October, he received a call from the Minister inviting him to attend an urgent meeting around the violence that had erupted over the Fees Must Fall campaign. The country was in near anarchy because of the protests. The President had called for an urgent meeting with the ministers of the security cluster and did not invite him. His understanding was that the President would travel later that evening and the meeting could not be rescheduled. The President was not even aware that he would attend this meeting until he arrived at the meeting. The Minister of State Security was deputising as the Minister of Police in this meeting. The Minister of Social Development was deputising for the Minister of Defence and Military Veterans at the meeting. The Minister of Justice was present and was of the view that Adv Abrahams could contribute to the meeting more than the Minister himself. He was compelled to cancel his dentist appointment to attend this meeting at very short notice. The charges against Gordhan et al were not discussed at this meeting. The only issue discussed was the violence around the fees protests. He expressed his belief that his attendance did not compromise his integrity, and was strictly because of the prevailing violence caused by fees protests. The NPA head should be able to meet with anyone regarding his responsibilities and still be able to act objectively, independently, and fairly without fear, favour or prejudice.
Adv Abrahams explained the media briefing of 11 October 2016 in which he made the announcement to prosecute. He held the briefing because he did not want the decision to leak because of speculations surrounding the investigation of Mr Gordhan. As head of the NPA, he deemed it appropriate to announce the decision, to take the nation into confidence, and to dispel any notion of political interference.
Adv Abrahams stated that it is now common cause that he reviewed the decision to prosecute in terms of section 179(5)(d) of the Constitution and announced the decision to drop charges on 31 October 2016. When he made the decision to prosecute, he had hinted of his powers of review under section 179(5)(d) of the Constitution. He consulted the relevant director, and took submissions from the accused persons, the complainant, and other relevant parties. The NPA routinely receives complaints from the public. These complaints pass through various channels as part of the NPA’s checks and balances. He has reviewed several cases since he was appointed, including the Faiez Jacobs and Tony Yengeni cases. He has overruled approximately 16 decisions to prosecute and agreed with about 94 decisions to prosecute. There is a public misconception of his role as head of the NPA. He retains the power to continue or discontinue prosecution in terms of section 179(5)(c) of the Constitution and section 22(2)(b) of the NPA Act when policy directives are not complied with. He is mindful of constitutionally entrenched rights on equality before the law. On Friday 14 October 2016, Freedom Under Law and the Helen Suzman Foundation submitted a request to discontinue the prosecution of Gordhan et al by a given date, failing which they would take legal action. The following day, the accused persons, Mr Pillay and Mr Magashula, made submissions requesting him to withdraw the charges. They were accorded a respectful hearing when making representations. He obtained the views of the prosecuting team and the acting special director prior to reviewing the matter. He also extended an invitation to the SARS Commissioner and to the head of the Directorate for Priority Crime Investigation [Hawks] to make submissions to him. The head of Hawks urged him not to drop the Gordhan charges. Because of the submissions and representations, he directed further investigation into the charges. After due consideration of the matter, he decided to overrule the decision to prosecute Gordhan et al and directed that the summons and charges against them be withdrawn. He briefed the Minister of Justice and requested the Minister inform the President of his decision.
Adv Abrahams stated that on 1 November, he received a letter from the Chairperson of the General Council of the Bar (GCB) concerning a petition against him by the EFF. The EFF alleged a meeting between him and the President on 10 October 2016, abuse of administrative and prosecuting powers, and other complaints. It threatened to resort to court action if the GCB did not act on their complaint. He is yet to hear from the GCB about the complaint and only heard of it from the media. On the same 1 November, Freedom Under Law wrote to President Zuma asking him to suspend the leadership of the NPA. The NPA will continue to exercise its functions without fear or favour, subject only to the Constitution and the law. Neither he nor the NPA has been captured by anyone.
Ms Breytenbach asked why Adv Torie Pretorius and Adv Sibongile Mzinyathi are not present, given that their names appear on Adv Abrahams’ list of delegates.
Adv Abrahams replied that they are absent because it was not necessary for them to be present. He was summoned to address the Committee on specific issues and requested two of his deputy national directors to accompany him. He reserves the prerogative on who to take with him.
Mr B Bongo (ANC) raised a point of order on the ground that Ms Breytenbach cannot run a dialogue with Adv Abrahams because the Committee is not a court of law.
The Chairperson asked whether the Committee should use this forum to investigate who Adv Abrahams should have brought with him. The focus should be on the key issues Adv Abrahams needs to address.
Ms Breytenbach sought to find out who compiled the list of delegates.
The Chairperson replied that the Minister’s office compiled the list.
Ms Breytenbach retorted that the Minister should be here if he compiled the list.
Ms Pilane-Majake suggested that the usual procedure of asking questions in the Committee should be followed to avoid the impression that the Committee is acting like a tribunal.
The Chairperson stated that the question of who compiled the delegate list is moot.
Mr Horn stated that there is precedent in the Committee for follow-up questions. Adv Abrahams tends to give long-winded answers to questions.
Mr Swart stated that it is difficult for Adv Abrahams to answer a group of numerous questions. He suggested groups of short questions to enable the responder to recall the questions asked.
Ms Breytenbach asked why Adv Abrahams considered Dr Ramaite and Adv Thoko Majokweni better delegates to appear before the Committee than Adv Pretorius and Adv Mzinyathi. She asked whether Adv Mzinyathi concurred with Adv Pretorius over the prosecution of Gordhan et al. If yes, was this concurrence in writing? If in writing, is Adv Abrahams ready to produce the document? Did Adv Mzinyathi concur with the prosecution of Robert McBride [the head of the Independent Police Investigative Directorate]? Did he consent to the prosecution of Major-General Sibiya? She asked whether Adv Abrahams personally met with any SAPS member, or the Hawks, or members of the prosecution team, and the circumstances of such meetings. Did he apply his mind to public interest or the facts of the case in this prosecution? Why did he say he owes no one an apology for his decision? Does he know the trauma he put Gordhan et al through? Does he know the consequences to the economy of his actions?
Adv Abrahams sought clarity on some of the questions. He expressed concern that, from the complaint to the GCB, there is potential litigation against him and the NPA because of the complaint made by the Economic Freedom Front [sic].
Mr Matiase objected to Adv Abrahams’ reference to the Economic Freedom Front.
Adv Abrahams apologised for misreferring to the Economic Freedom Fighters. He assured members that he did not mean to offend anyone.
Adv Abrahams restated his concern over his right to respond to questions given the potential for litigation because of the complaints made to the GCB by the Freedom Under Law and the Helen Suzman Foundation.
The Chairperson asked Adv Abrahams to answer the questions put to him to the best of his ability.
Mr Horn stated that Adv Abrahams cannot rely on the sub judice rule because there is no court case yet. Accordingly, no question is off limits.
Mr Swart suggested that Rule 168 of Parliament could have assisted in this matter if Adv Abrahams had been sworn in as a witness. In that case, he would have had full indemnity for whatever he says. However, Adv Abrahams is not before the Committee as a witness.
The Chairperson stated that the Committee is not a Rules Committee nor should it be made an academic exercise. A member could follow up a question with another question.
Adv Abrahams stated that he engaged with Adv Pretorius and Adv Mzinyathi and decided it was not necessary for them to attend the meeting. On why he deemed it necessary to review the matter after representations and initial decisions were made, the prerogative to prosecute lies with the DPP in terms of section 24(3) of the NPA Act. His powers come into play on two fronts: the power to review; policy directives that must be adhered to, and intervening in matters after review. He had confidence in the special director and the DPP. He only exercises his inherent powers to discontinue prosecution. On why he announced the decision to prosecute, he deemed it necessary because it was an important matter. Also, he announced it to prevent it from being leaked. Adv Mzinyathi did not concur with the prosecution. He is not sure whether this was in writing. But he is prepared to produce the relevant documents before any court or before the appropriate legal forum.
Dr Mulder stated that the Rules of Parliament enable the Committee to request documents. He asked what would happen if Parliament requests documents from Adv Abrahams.
Adv Abrahams replied that he would consider the request. Adv Mzinyathi concurred with the McBride prosecution. He admitted that he did not meet with the investigating team because he does not normally meet them before approving prosecutions. On whether he applied his mind to the facts of the case, he was satisfied on the facts that there was a prima facie case. Public interest was not a consideration in the decision not to prosecute Gordhan et al. He announced the decision as head of the NPA, even though he did not make the decision to prosecute. The matter was well publicised. The fact that he announced the decision does not mean he owns the decision. He sought clarity on one of the questions.
Ms Breytenbach asked why he only felt it necessary to review the facts after he had announced the decision to prosecute.
Adv Abrahams responded that he announced the decision to prosecute because he had confidence in his deputy directors and did not deem it necessary to interfere at that time. He did not deem it necessary to delve into the facts at that stage. The decision was announced on 11 October. On 14 October, he received a letter from Freedom Under the Law to withdraw the charges. This was followed by a request from Gordhan et al and their legal representatives. Having satisfied himself that the issues raised in these submissions have merit, he announced the decision not to continue with the prosecution. On why he did not apologise, he acknowledged the significance of the matter, explaining that he had no intention to act as a tormentor or to negate the rights of the affected parties. There was no mala fide motive behind the decision to prosecute. Any person facing charges faces some form of distress.
Mr Horn asked Adv Abrahams why he made the announcement to prosecute without being accompanied by Adv Mzinyathi. This implies that he owns the decision to prosecute and had prior involvement in the decision. Must the public not conclude that the initial decision to prosecute was politically motivated? Has Adv Abrahams not brought the institution of the NPA into disrepute? Concerning the meeting with the President, Mr Horn stated that Adv Abrahams was wrong to assert his right to meet with anyone he wishes. If he insists on the correctness of that meeting, it implies that he lacks the sound judgment to head the NPA. Due consideration of the public interest and the effect on the economy require that he should have reviewed the charges very carefully before announcing the decision to prosecute. He made himself guilty of misconduct for not reviewing the matter using the information available to him. This is evident in his admission during his second press conference that there was never a winnable case against Gordhan et al. It is also evident in his order of additional investigations and subpoenaing the Government Pensions Administration Agency. The information that convinced him that there was no substantial case for prosecution was always available before him. The inescapable conclusion is that Adv Abrahams was either carrying out a political agenda, or is incapable of performing the functions of NPA Head.
Adv Abrahams stated that it is incorrect for him to own the decision to prosecute simply because Adv Pretorius and Adv Mzinyathi are not present today. There is no political motive and interference in the case. Political motivation is a media creation. The mere fact that charges were withdrawn should instil confidence in the public that the NPA has checks and balances in place to ensure that people are treated fairly. The initial decision to prosecute was not politically motivated. The fact that a review process was followed in the decision to discontinue prosecution indicates the NPA’s independence. He has never reviewed a single case with any motive other than the interest of justice. He will not allow the perception that the NPA is used to further the interests of a certain section of the society. There are many South Africans that have confidence in the NPA. The DPP and the NPA sacrifice a lot to ensure justice is delivered to South Africans. Many people have no idea of difficulties in the daily life of a prosecutor.
Mr Horn cut in to accuse Adv Abrahams of evading his questions with long-winded responses. He insisted that Adv Abrahams should have reviewed this matter before going public with the initial decision to prosecute.
The Chairperson stated that accusations of long-windedness against lawyers would include Mr Horn. He advised Adv Abrahams to give concise answers.
Ms Pilane-Majake advised that Adv Abrahams should be given the freedom to answer questions in the way he deems fit. The Committee can then reach its conclusions.
Adv Abrahams declared that there was a near state of anarchy on the day he met with the President. He had received a call from the Minister for an emergency briefing and had to cancel a doctor’s appointment to attend this briefing. He regretted that the venue of the meeting was at Luthuli House, but the meeting was necessary because “it impacted on security of this country”. This is the primary reason why he attended it. His attendance is not indicative of a lack of sound judgment. It is in furtherance of his duties as NPA head. Public interest was neglected in the initial decision to prosecute. These decisions are never easy to make. But prosecutors always stick to their oath of office and the rule of law. He had never admitted that there was no substantial case for prosecution. He had always believed there was a winnable case until he reviewed the submissions made by Freedom Under the Law and the accused persons’ legal representatives. He cannot be expected to review a matter and not follow up on it. Adv Pretorius and Adv Mzinyathi had no prior knowledge of the submissions from Freedom Under the Law. He would have failed in his responsibilities if he did not investigate the submissions and reach the decision he arrived at. Under no circumstances can a conclusion of political interference be reached in this matter.
Mr Swart stated that this was a prosecutor-driven case. The Public Protector’s report gives substance to media allegations that the NPA has been captured by the Gupta family. Was information consciously withdrawn from Adv Abrahams on the facts of the case? Did he state that the Minister of Finance is not a special person and the economy is not dependant on one man?
The Chairperson advised members to avoid preambles in order to keep their questions concise.
Adv Abrahams denied that there are prosecutor-driven cases. Rather, there are prosecutor-guided cases. The NPA does provide guidance to the Hawks. On how things got to this point, he recalled his press briefing in which he regretted the absence of close collaboration between the Hawks and the accused persons. He has been advised that investigations are at an advanced stage in the SARS rogue unit case and promised that it will not follow the Pravin case route. The NPA would have preferred greater media coverage of its successes rather than its failures. There is a misconception that the NPA has been captured. Captured by whom? The current political climate in the country and the accusations against the NPA do not augur well for public confidence in the Constitution. But the NPA will continue to give effect to the rule of law and constitutional imperatives. The question around the Finance Minister is misplaced. He never said the Minister is not a special person. The economy is at a stage where it needs careful leadership involving a wide variety of people. The comment that the economy must not depend on one man must be seen in this context. It was certainly not made in a negative light.
Mr Matiase stated that Adv Abrahams seems not to have familiarised himself with the powers vested in his office. Considering the role of the Minister of Finance in the socioeconomic stability of the country, the NPA should have been mindful of the manner in which he was charged. Mr Gordhan’s family members were intimidated on the eve of his budget statement. Adv Abrahams therefore owes the Minister of Finance an apology for the indecent manner in which he was treated. It was within Adv Abrahams’ rights to advise the Minister on the inappropriateness of the venue of the 10 October 2016 meeting. The anarchy Adv Abrahams referred to resulted from the state’s failure to fulfil its socioeconomic obligations in higher education. Give that the NPA is part of the state, Adv Abrahams should admit that the anarchy is state-inspired. Among the concerns raised by the EFF is the unlawfulness of the charges raised over the apartheid-style of repressing public dissent. This is the context in which Adv Abrahams was accused of protecting institutionalised state violence. Accordingly, the charges against the Finance Minister were part of state intimidation. There is no excuse for the charges because they were maliciously motivated. Why did Adv Abrahams not act swiftly to review the charges in the light of the NPA Act and constitutional provisions? He has failed to uphold the code of conduct of the NPA, and thereby contravened the NPA Act, which requires him to discharge his duties without political considerations. He has put the good name of the NPA into disrepute. Due to his systematic blunders in his bid to appease his political superiors, he has allowed the NPA to be captured by those who have no respect for the rule of law and want to sell the nation’s sovereignty. Accordingly, he is not fit to hold office, ought to be disbarred by the GCB, and deserves nothing less than dismissal. He should do the honourable thing and resign before he is pushed out.
Mr Matiase concluded by saying that Adv Abrahams and his mentors are responsible for the hostile environment that exists in South Africa. He should take personal responsibility for bringing the NPA and the nation’s criminal justice system into disrepute.
The Chairperson attempted to clarify Mr Matiase’s statements on state-inspired anarchy. He said state-inspired anarchy is a political issue that can be debated at another forum. He disclosed that the GCB has appointed a council to investigate the request to disbar Adv Abrahams and the Committee should not delve into the matter.
Adv Abrahams stated that there is no need for him to apologise to the Finance Minister because the Constitution provides that everyone is equal before the law. He denied that the NPA is part of a state-inspired anarchy. The NPA exists to uphold the rule of law and the Constitution irrespective of the status of accused persons or the importance of their office. He insisted that announcing charges is not a violation of the NPA code of conduct. He denied that his actions were part of a systematic blunder.
Mr S Mncwabe (NFP) asked Adv Abrahams if he established intention to commit fraud when he received the charges against the Finance Minister. What would be his comment if someone stated that the entire case is a huge embarrassment that warrants his resignation?
Adv Abrahams stated that he was satisfied that the initial charges were worthy of prosecution. He has not considered resignation. He insisted that equality before the law applies to everyone.
Dr Mulder acknowledged that charging the Finance Minister was a difficult decision. The problem is that some of those who took the decision are not present to defend it. On the meeting of 10 October 2016 at Luthuli House, the NPA head should not be seen attending political meetings. The announcement of the prosecution made on 11 October can hardly be a coincidence. There is a perception that the only reason why the charges were withdrawn is because of public outcry. When Adv Abrahams agreed with the decision to prosecute, what evidence of criminal intent on the part of the Minister did he receive that convinced him that the case was winnable? What step was taken by the NPA to obtain the Minister’s legal advice on the decision to retire Mr Pillay early? Where did the meeting with the minister take place on 4 October 2016?
Adv Abrahams replied that the meeting occurred in the Minister’s office. His understanding of what the media portrayed as legal advice concerned the advice that retired Deputy Chief Justice Zak Yacoob gave to Mr Gordhan rather than about the retirement of Mr Pillay. When the decision was made to prosecute, he could only review the decision because it was already made. He did not deem it necessary to review it at that stage because trusted senior officials had handled it. When he reviewed the matter, he agreed there was a winnable case. However, after he received representations, he overruled the decision. He did not deem it necessary at the time to review the initial decision to prosecute. Had these representations been brought to his attention at that time, he would not have agreed with the decision to prosecute. His handling of the matter was not influenced by the public.
Dr Mulder asked again where the meeting with the Minister of Justice occurred.
Adv Abrahams replied that the meeting must have occurred in the office of the Minister.
Ms M Mothapo (ANC) remarked that constitutionality is within Parliament’s jurisdiction and it is unfair to ask the NPA about it. She asked Adv Abrahams how many high-profile cases he has taken on review in terms of section 179(5)(c) of the Constitution read together with section 22(2)(b) of the NPA Act.
Mr Bongo stated that no legislation requires the NPA to meet in a particular venue. All it needs is to adhere to the rule of law. He noted that Ms Breytenbach is the first to cast aspersions on Adv Abrahams, noting that these aspersions are personal because she is currently facing charges by the NPA.
Mr Swart protested that Mr Bongo is casting aspersions on Ms Breytenbach’s character.
Mr Bongo denied that he casting aspersions on Ms Breytenbach. Adv Abrahams has done a very good job. The environment in which he operates is sensitive because he is subjected to attacks just because he is appointed by President Zuma. There are people whose objective is to cause confusion rather than support the work of the Minister of Justice. Issues such as state capture are meant to distract the NPA from doing its work. There are many cases withdrawn by the NPA which did not raise eyebrows. He suggested a special committee to review high profile cases. He expressed confidence that Adv Abrahams’ decisions are informed by legal considerations, stating that Adv Abrahams does not look like a person who has been captured.
Ms Pilane-Majake refuted some of the issues raised by her DA and EFF colleagues. There is nothing wrong with the NPA head visiting the ANC because it is the ruling party. Common sense dictates that the NPA head should visit the President, not the other way around. She asked Adv Abrahams if he was coerced into withdrawing the charges. What is his opinion of the state of law and order in the country? South Africa has huge problems of poverty and inequality. Why are voices not being raised on these problems? Why are resources wasted on interrogating people rather than devoting time to solving problems of poverty in the rural areas? South Africans are tired of endless litigations. They want development. If the leadership of South Africa is not seen as directing the country’s vision, what hope is there for the common person? Why is the head of the NPA always under attack? On state capture, is it only arising now or has it always been present?
The Chairperson stated that the NPA’s situation is affected by the political climate in the country. This situation makes it difficult for the Committee to focus on legal questions. Instead, efforts are being expended on issues such as venue of meetings between the NPA head and the President. If there is state capture, does that translate into a capturing of the DPP? The timing of the review is important. However, in the same way that a case before a high court can be appealed to the SCA and the Constitutional Court so also can a case in the NPA be reviewed. The Committee must avoid manoeuvring public opinion by casting aspersions on members and invited guests. If the public cannot see the Committee as acting without fear or favour, they cannot have confidence in its work.
Dr Mulder expressed dissatisfaction over the Chairperson’s attempts to limit the freedom of some members to question Adv Abrahams. He argued that the venue of NPA meetings is very relevant. There are certain meeting places that question the independence of the NPA. He told Adv Abrahams that his position at the NPA is so important that he should not be seeing politicians in their offices. As he put it, “everybody in South Africa knows that political decisions are taken at Luthuli House”.
The Chairperson denied that he took a position on the relevance of the NPA’s meeting places. He merely questioned its relevance and suggested that it could be debated another day.
Adv Abrahams thanked the Committee members who commended the NPA’s work. He restated that Adv Pretorius and Adv Mzinyathi are not present because he did not deem it necessary or appropriate for them to appear. Moreover, he had thought that today’s meeting was a briefing, not the interrogation he has faced. Perhaps this meeting would have dragged on into tomorrow if Adv Pretorius and Adv Mzinyathi had appeared.
Adv Abrahams restated that he has reviewed 94 cases in which he agreed with the decisions of the DPP and special directors. He has disagreed with 16 decisions after reviewing them. There was a prima facie case against the Finance Minister. A review cannot be made prior to a decision to prosecute. It is incorrect that he took public interest into consideration when he made the decision to withdraw the charges. Public interest played no role in the decision. He denied he was captured by anyone and stated that he will never be captured. He has had a distinguished career as a prosecutor and has pride in his work. He is not a populist, never has been, and never will be. It is important for government departments to work cooperatively to advance the country’s interests. Presently, everyone seems to be working with their own interests. He has discharged his duties as NPA head without fear or favour and will continue to do so.
The Chairperson interrupted Adv Abrahams to assure members that he did not summarise the comments on the venue of the October 10 meeting at Luthuli House. He merely observed that the Committee cannot be part of those who manipulate public opinion. Organisations should not dictate to the courts on the type of judgments to hand down or dictate to government agencies on how to operate. This is part of the rule of law and due process of the law. The Committee reserves the right to revisit the Gordhan et al matter and write to Adv Abrahams on its resolutions. He thanked Adv Abrahams and closed the meeting at 1:01 pm.
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