There is impunity in high places, while trumped-up charges threaten the economy and country’s reputation, writes Paul Hoffman
Anyone familiar with the Abrahamic tradition that underpins the main religions practised in SA — Judaism, Christianity and Islam, in their order of appearance — will recognise the ninth commandment Moses brought down from Mount Sinai: “Thou shalt not bear false witness”. In the more modern language of the Good News Bible this injunction has been translated from the original Hebrew as “Do not accuse anyone falsely”.
While SA is a secular state, it does expect of its public administration that, “A high standard of professional ethics must be promoted and maintained” in accordance with the values and principles which govern it. There is also a heartfelt request in the preamble to the constitution: “May God protect our people.”
Other constitutional values that are worth noting are that “efficient, economic and effective use of resources must be promoted” and “services must be provided impartially, fairly, equitably and without bias”. These are neatly set out in section 195(1) of the Constitution itself, and are all too frequently honoured in the breach.
Now consider, against these standards, the antics of a less revered Abrahamic tradition, that of Shaun Abrahams, the national director of public prosecutions, whose task it is to protect our people against the ravages of crime by exercising “the power to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings”. His overdue decision to withdraw unwarranted charges against the minister of finance and others is but the most recent manifestation of his reckless disregard for the rules that bind him.
There are simply no highlights of his term of office, so dubiously begun after the “out-of-court settlement” concluded with his predecessor, Mxolisi Nxasana, immediately the latter showed signs of willingness to act independently of the executive branch. A scent of illegality hangs over that deal, with criminal charges of corruption laid against the president and his justice minister for their part in it. In addition, there are review proceedings in the civil courts that, if successful, will see Abrahams out of office due to the irregularity of the termination of Nxasana’s services. If he does not resign over the debacle of summonsing a sitting minister, further litigation to remove him can be expected.
Abrahams insists he is prepared to act without fear, favour or prejudice. More recently he has added that impunity in high places is a thing of the past. This is uttered in explanation for his otherwise inexplicable willingness to allow a summons to be served on Finance Minister Pravin Gordhan, who was — but is no longer — accused of fraud and theft. The exhaustive and long-running investigation by the Hawks, our supposedly independent and effective corruption busters, did not turn up a single fact suggesting criminal intent: a fatal lapse.
No sooner had he taken office than Abrahams contrived to oversee the withdrawal of charges of perjury against his deputy, Nomgcobo Jiba, in circumstances that do not stand up to objective scrutiny. When Jiba and two of her senior colleagues were sued in the high court on allegations of being unfit for office, Abrahams remained protective of them, and the president did nothing to suspend them pending the hearing of the relevant striking-off applications.
Now that Jiba and Lawrence Mrwebi have been struck off the roll of advocates, belated steps are being taken to suspend them, much to the bemusement of Nxasana. Impunity in high places appears to start at home in the National Prosecuting Authority of the modern Abrahamic era. The failure to charge the president on 783 long-outstanding charges speaks to this.
According to information made public this month by Judge Dennis Davis, Abrahams is sitting on a backlog of about 3,000 cases concerning corrupt activities in the procurement system of the state. These cases arise out of the sterling audit work of the auditor-general and are regarded as eminently prosecutable. As the procurement system loses R25bn-R30bn to irregularities of various kinds each year, it is plain that active steps to recover the proceeds of the corrupt activities of public servants in the supply chain could go a long way to solving the financial woes of the country.
Abrahams has told Parliament that the National Prosecuting Authority has, in the past two years, secured 151 convictions of government officials on charges of corruption. At that rate, it will take 20 years to work off the backlog of cases: so much for effectiveness and efficiency, the watchwords of the public administration. This sorry state of affairs is the subject matter of a complaint to the Office of the Public Protector and is currently under investigation. The new public protector accepted the complaint with commendable alacrity and has been asked to treat it as urgent.
It is surely in relation to the matter of the persecution of Gordhan that Abrahams will define his term of office. It ought to have been plain to him that neither the facts nor the law support the charges. The paper trail leads to a legal adviser within the South African Revenue Service (SARS), who gave advice to all concerned that it was perfectly legal to allow Ivan Pillay to retire early and to be re-employed in the manner in which this was done. It gets worse: the SARS attorney refuses, on ethical grounds, to become involved in the persecution of a key member of Cabinet.
In these circumstances, the prosecution would have had to pull a highly unlikely rabbit out of the hat to prove that deliberate and intentionally criminal action was taken by any of the parties involved in the deal.
The building blocks of a sound prosecution were not in place when, only three weeks ago, Abrahams long-windedly announced his intention to prosecute. The fact that the Hawks were swooping about, not before (as it should have been) but after the service of summons, seeking critical confirmation of information long in the public domain and explanations of the standard practice in place for those in SARS and elsewhere in the public administration who retire early, is a clear indication that all is not well with the prosecution service and with Abrahams’s assessment of the briefing he received before going public.
Abrahams needs to lead from the front; he knows that the buck stops with him. His unwillingness to fall on his sword is evidence of his lack of appreciation of the enormity of what he has done to the economy, to the reputation of the country, its prosecution service and its minister of finance. Those who sought to civilly interdict the prosecution in the public interest would be well advised to ask for costs out of the pockets of those who were so irresponsible as to act on the baseless complaint of SARS boss Tom Moyane, the destroyer-in-chief of the reputation and spirit of SARS personnel.
Conspiracy theorists wonder about the (now cancelled) timing of the first appearance of the accused including Gordhan in Pretoria to coincide with an important Cabinet meeting in Cape Town at which nuclear build plans and their transfer to Eskom will be discussed by all members of the Cabinet with the exception of the minister of finance, whose opposition to going nuclear (and to the excessive cost involved) is well-known.
Others wonder whether the timing of the withdrawal of the charges is a belated attempt to take the wind out of the sails of those planning protests on November 2 at the court in which the minister no longer has to appear and elsewhere. Whatever the truth may be, nothing that has been done in the sorry saga has served to enhance the reputation of Abrahams in any way. He should go, and go now. And he must be pushed if he won’t jump himself.
• Hoffman, an advocate and director of Accountability Now, is author of Confronting the Corrupt, which is due for publication. Article published in Business Day 1 November 2016