National Director of Public Prosecutions advocate Shaun Abrahams knew two weeks before he withdrew criminal charges against Finance Minister Pravin Gordhan, Oupa Magashula and Ivan Pillay that the charges were baseless.
The legal teams of Pillay and Magashula had set out the law exactly to Abrahams in a letter dated October 18, which proved that not a single act performed by the three - regarding the early retirement of Pillay - could ever be defined as unlawful.
The letter was issued to Abrahams on the same day the drama involving South African Revenue Service (Sars) official Vlok Symington unfolded, when he was apparently held hostage in the boardroom of his office, allegedly by members of the Hawks and other officials.
It was this letter which prompted Abrahams to find that they did not have the requisite intention to act unlawfully, which resulted in him overriding the decision to prosecute.
The legal teams didn't ask Abrahams to review his decision to charge the three; they simply quoted the Public Services Act and asked him to re-think the charges.
The letter stated that when State functionaries and a minister acted strictly within statutes and merely execute a discretion which they were empowered to do in terms of the laws, it was unthinkable that unlawfulness could ever come into play, not to mention any inference of criminal intent. In the letter, which the Pretoria News has seen, it was stated that in terms of the act, an officer such as Pillay had the right to retire from the public service at 55 or thereafter.
The act is clear that if an official wanted to retire before 60, but after 55, the executive authority - in this case Gordhan - could give the go-ahead if there were sufficient reasons. The letter says Gordhan and his then co-accused acted according to the letter of the provisions of the act. It was then already pointed out that this happened every day and that thousands of employees of various departments went on early retirement. Abrahams was told that even if he doubted the correctness of Gordhan’s conduct, it was still a far cry from any criminal charge, let alone fraud, theft or otherwise.
The Helen Suzman Foundation (HSF) and Freedom Under Law has, meanwhile, launched an urgent bid to have Abrahams; head of priority crimes litigation, Dr Torie Pretorius; and, North Gauteng Director of Public Prosecutions, advocate Sibongile Mzinyathi, suspended pending an inquiry into their fitness to hold office.
Francis Antonie of the HSF, in an affidavit served on the officials yesterday, questioned the three’s fitness to hold office.
He especially gunned for Abrahams, whom he said desperately tried to distance himself from the charges when they were dropped. “He now brazenly claims that he should bear no responsibility for this debacle. He instead placed the blame at the feet of the charged individuals, the direct victims.”
Antonie said Abrahams’s unwillingness to take responsibility confirmed that he was not fit and proper for the high office.
He questioned President Jacob Zuma’s refusal to institute disciplinary proceedings against Abrahams and the other officials.
Pretoria News