Legal experts have called into question the fitness of advocate Shaun Abrahams, the national director of public prosecution (NDPP), to hold office following his decision to criminally charge Finance Minister Pravin Gordhan.<\/p>\n
Gordhan was accused\u201a in his previous capacity as head of SARS\u201a of fraudulently approving an early retirement for then deputy commissioner Ivan Pillay and re-hiring him as a consultant. Pillay and former SARS commissioner Oupa Magashula were Gordhan\u2019s co-accused.<\/p>\n
On Monday, however, Abrahams dropped the charges saying he was satisfied that Magashula, Pillay and Gordhan did not have the requisite intention to act unlawfully. This prompted calls for an enquiry into his fitness to hold office.<\/p>\n
Abrahams maintained <\/a>that the matter was not a blunder, but a matter of difference of legal opinions. “Will I resign? I certainly will not,” he told journalists when asked if he would step down.<\/p>\n Freedom Under Law and the Helen Suzman Foundation welcomed the withdrawal of the criminal charges against Gordhan, Ivan Pillay and Oupa Magashula.<\/p>\n “We have, from the start, maintained that the charges were without any foundation whatsoever. No competent prosecutor, at any level of the prosecuting authority, would have brought them.”<\/p>\n “At the same time, we are profoundly disappointed that Mr Abrahams still does not understand the enormity of what the Hawks and his staff have done, and is still not frank with the public.<\/p>\n “This case has never been about the interpretation of some or other pension regulation; the charges were that our minister of finance and two former heads of SARS were crooks who had committed fraud or stolen over a million rands of public money. Yet there never was proof of any intention to commit a crime,” the foundation said.<\/p>\n “The charges were obviously bad, both in law and on any plausible reading of the facts. At best, the charges were a colossal blunder. At worst, they were a ham-fisted attempt to loot the Treasury. Either way, history will not remember those responsible favourably, and they should be held to account,” it said.<\/p>\n “Sadly, Mr Abrahams shows no sign that he or his advisers have any conception of what they have done,” the foundation said.<\/p>\n Abrahams failed to act – and lied about it<\/strong><\/p>\n Legal expert, Pierre de Vos, in his blog Constitutionally Speaking <\/a>said that the NDPP could have intervened before the decision to charge Minister Gordhan was taken, because those who were looking into this case had failed to adhere to the policy directives contained in the Code of Conduct.<\/p>\n “Yet, not only did Abrahams fail to do so, he also misled the nation by claiming that he had no authority to do what section 179(5)(c) of the Constitution, read with section 22(2)(b) of the NPA Act, authorised him to do,” de Vos said.<\/p>\n “On the face of it, the failure of Abrahams to act in a case in which he obviously took a keen interest and in which his prosecutors clearly failed to comply with policy directives raises questions about the conduct of the NDPP himself.”<\/p>\n De Vos questioned whether the failure on the part of the NDPP made him vulnerable to removal from office.<\/p>\n He noted that in terms of section 12(6) of the National Prosecuting Authority Act the President may provisionally suspend the NDPP (or a Deputy National Director) from his or her office, pending an enquiry into his or her fitness to hold office.<\/p>\n “The president may then remove him or her from office on, amongst others, the grounds of misconduct or on account that he or she is no longer a fit and proper person to hold the office.<\/p>\n “Parliament will then have 30 days to confirm this removal from office. This means the tenure of Adv. Abrahams could effectively come to an end (after the relevant processes are followed) if a court declares that he is no longer a fit and proper person,” the legal expert said.<\/p>\n “Alternatively, the president and parliament can throw Adv. Abrahams under the bus if an enquiry finds that he made himself guilty of misconduct in the way he enthusiastically pursued an unwinnable case against the Minister of Finance and failed to intervene when it was clear to the whole world that his prosecutors continued a prosecution when there was not sufficient evidence to secure a conviction,” he said.<\/p>\n According to de Vos, it is difficult to see Abrahams recovering from the disastrous decision to prosecute the Finance Minister on trumped up charges.<\/p>\n NPA drops fraud charges against Gordhan<\/strong><\/a><\/p>\n The tide turns against Zuma as 101 ANC stalwarts back Gordhan<\/a><\/strong><\/p>\nMore on politics<\/h3>\n