Shaun’s bid to rescue his reputation

NPA boss Shaun Abrahams (left) and Berning Ntlemeza from the Hawks (right) exchanged a series of heated letters.

NPA boss Shaun Abrahams (left) and Berning Ntlemeza from the Hawks (right) exchanged a series of heated letters.

Published Nov 20, 2016

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Unlikely hero or cunning villain: that is the question prompted by the exchange of letters between prosecutions boss Shaun Abrahams and the head of the Hawks, Berning Ntlemeza.

The letters became public this week when Abrahams included them in his answering affidavit in the application by Freedom Under Law and the Helen Suzman Foundation to enforce his suspension pending an inquiry into his fitness for office.

The North Gauteng director of public prosecutions, Sibongile Mzinyathi, and the head of the priority crimes litigation unit, Torie Pretorius, the NPA officers fingered by Abrahams as having taken the decision to charge Finance Minister Pravin Gordhan and two former Sars officials with fraud, are also in the firing line.

Click here to read the full affidavit

They show Abrahams in a different light to the robotic caricature he has been cast as in countless cartoons, mindlessly carrying out the directives of his political masters.

In his response to Ntlemeza’s furious questioning of his decision to drop the charges, Abrahams comes over all defiant and principled, reminding the Hawks boss that it is not his place to make the call as to who should be prosecuted and warning of serious repercussions should he persist in trying to do so.

Could it be, then, that “Shaun the sheep”, as he has memorably been dubbed, has been grossly misunderstood, all the while acting on the evidence in front of him?

The decision to drop the charges, he informed Ntlemeza after having been accused of acting in bad faith, was taken after representations from the accused and Freedom Under Law and the Helen Suzman Foundation made it clear that the case was not winnable.

Key to that conclusion was the legal opinion of SA Revenue Service (Sars) official Vlok Symington, which showed that Gordhan, former Sars commissioner Oupa Magashula and former deputy commissioner Ivan Pillay had been advised that it was perfectly in order for Pillay to take early retirement and for the revenue service to pay the resulting penalty on his behalf.

It blew the case, such as it was before this information came to light, right out of the water.

Why, Abrahams demanded to know from Ntlemeza, had this critical piece of evidence not been furnished to the prosecution team?

The insinuation - and Abrahams’s only hope of escaping a finding at the looming inquiry into his fitness for office that he is either incompetent or acted with an ulterior motive in allowing the charges to go ahead - is that the prosecutors were duped by the Hawks into believing the case could be won.

That possibility appeared to be reinforced by a statement from the Presidency announcing that Abrahams, Mzinyathi and Pretorius should explain by next Monday why they should not face an inquiry and be placed on suspension in the meantime.

Perhaps, these developments seemed to suggest that Abrahams was not the team player he had been expected to be, or had changed his spots, and needed to be fed to the wolves.

But a huge, stubbornly unanswered question hangs over this line of reasoning: What was the basis for pressing charges in the first place?

It is significant, as noted by Francis Antonie for Freedom Under Law in his replying affidavit to the representations of the NPA officials and that of President Jacob Zuma, that in their protestations of innocence and blame-shifting - with Mzinyathi going as far as to accuse the deputy judge-president of colluding with the applicants to expedite the hearing of the matter - they could not produce a single piece of evidence showing they had reason to believe the accused had acted with the intent to commit fraud.

It was clear, said Antonie, that the NPA never had any evidence of “furtive or fraudulent intent”, yet Abrahams chose to announce the charges to the world and insist on the soundness of the case.

More than this, he spent the bulk of the press conference at which he made the announcement discussing the unrelated matter of the alleged “rogue” unit at Sars, when, as he admitted, the investigation was not yet complete.

All this in the context of a politically-charged environment in which the perception reigned that Gordhan was a political target because of his efforts to keep the would-be looters from the Treasury's gate and shortly before he was to present the medium-term budget policy statement.

The only conclusion to be drawn from this reckless enthusiasm for a prosecution without a factual basis had to be that Abrahams and company were either spectacularly incompetent or had an ulterior motive, Antonie argued.

The strategic release of his correspondence with Ntlemeza would then appear to be a belated attempt by Abrahams to rescue his reputation after he realised he had kicked over a hornets’ nest of public and political outrage.

This conclusion is strengthened when Zuma’s notice to Abrahams and his NPA colleagues and his response to the NGOs are examined more closely. The president makes it clear he finds nothing wrong with their behaviour, but claims he needs more time before making a decision on whether or not to launch an inquiry, to allow them to respond to the allegations against them.

In other words, he knows they are innocent but first has to hear from them before deciding whether there is a need for an inquiry to establish this.

Most importantly, he gave them until November 28 - after the scheduled date for the hearing - to get back to him, arguing that the hearing was premature because he had not yet decided not to do as the applicant asked.

In this light, it is clear that the notice to the NPA officials was not the prelude to throwing them under the bus, but to prevent the court instructing him to suspend them and subject them to an inquiry.

Which returns Abrahams to the more familiar status of a sheep, attempting to borrow the robes of a hero.

The Sunday Independent

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