Amid rumours of conspiracy, NPA head Shaun Abrahams' future lies in the balance, writes Janet Smith.
Supporters of the Union of Nationalists for Renewal were protesting outside the Pretoria Regional Court. The stamp of their song was steady, but it didn’t lift the sombre clank of feet in the courtroom where 19 suspected Congolese rebels shuffled in the dock.
Charged with plotting against DRC President Joseph Kabila, the men had been arrested earlier that week in Limpopo where they were said to have been organising specialised military training.
The state prosecutor, advocate Shaun Abrahams, calmly stated the facts as he saw them to the court.
The arrests had been made by South Africa’s counter-terrorism forces amid allegations the suspects had promised to pay mercenaries. Abrahams explained the South African police had received a tip-off about the group and had infiltrated it.
He strenuously opposed bail, quoted as saying: “A full-scale war was their only solution.”
This was February 2013, and for Abrahams, at the time, transnational crime was a developing theme. At the request of the Africa Prosecutors’ Association, he was soon elected lead drafter of a counter-terrorism training manual launched with the Institute for Security Studies in Kinshasa. It was quiet, important work.
That was 45 months ago when Abrahams was still out of the broader public eye, settled in one Mxolisi Nxasana’s office in the priority crimes litigation unit of the National Prosecuting Authority (NPA), having been recognised as the best specialist prosecutor after receiving an award for excellence.
One Nomgcobo Jiba was then the acting national director of public prosecutions (NDPP) - a post key to the aims of the constitution which was designed to be filled for a full 10 years.
Fast forward to last month, when her lawyer was making representations to Zuma against his client’s suspension following a High Court ruling in September that she and her NPA colleague Lawrence Mrwebi’s names be struck off the roll after their handling of cases involving KwaZulu-Natal Hawks boss Johan Booysen and controversial suspended crime intelligence head Richard Mdluli.
Meanwhile, Abrahams was said, whether as a formality or not, to be threatened with his own suspension over his ill-fated prosecution of Finance Minister Pravin Gordhan.
Abrahams, who was appointed NDPP only in June last year, entered a twist into the tale, however, when he included details of what sounded like a scorching exchange between him and Hawks head Berning Ntlemeza in an affidavit this week in the court application against him brought by Freedom Under Law and the Helen Suzman Foundation.
But as of going to press, Zuma’s legal papers, also filed in response to the suspension bid, suggested the action was an abuse of the court process.
The president’s lawyers say Abrahams’ suspension and the establishment of an inquiry following former public protector Thuli Madonsela’s report, State of Capture, are not a foregone conclusion.
This all feels some distance from August 2015 when Jiba sat next to Abrahams as Justice Minister Michael Masutha introduced the 39-year-old advocate to his staff. Jiba and Abrahams’ proximity was appropriate to that event held at the NPA offices in Silverton, Pretoria. She would be his deputy. But while all eyes should have been on Abrahams, she was the focal point.
Jiba had been accused of fraud and perjury after a foiled attempt to prosecute Booysen on racketeering and other charges. But she was acting national director at the time charges were brought against the former KZN Hawks boss, while the Prevention of Organised Crime Act states a person may only be charged for racketeering if the prosecution is authorised by, as it happens, the national director.
Perhaps more public than that, however, was the court saying charges against Booysen did not meet “the barest of minimum” requirements.
The allegations were that he and members of the Cato Manor organised crime unit had been operating a “death squad”. But Booysen maintained the unit was targeted for investigating corruption cases, such as that of Thoshan Panday, said to be a business partner of Edward Zuma, son of the president.
The NPA had no comment on Booysen at that moment. But Jiba would not easily be able to shrug off suggestions that she had protected Zuma who was, in turn, to face legal action brought by Corruption Watch and, again, Freedom Under Law. An aspect of that claim was that Zuma had not acted against her.
There was no doubt when Abrahams was appointed that any new NDPP would be under special scrutiny, particularly as no national director had yet made the 10-year cut. Advocate Bulelani Ngcuka had got close, with eight in the bag before he asked then-president Thabo Mbeki to relieve him of the post in 2004.
In Ngcuka’s background was the controversy concerning the decision to prosecute Schabir Shaik for corruption, accompanied by accusations that Ngcuka had been an apartheid spy.
He would be followed by Silas Ramaite, acting there until 2005, followed by Vusi Pikoli who would last until 2007. Then came Mokotedi Mpshe, who would act in the position until 2010, intersected by Menzi Simelane who would cross paths with Jiba, acting from 2011 before she was replaced in 2013 by Abrahams’ former boss Mxolisi Nxasana, who now reportedly wants his job back, having said he was “hounded out” of the NPA by Zuma’s allies.
Amid rumours that the president’s inner circle was concerned Nxasana would reinstate 783 corruption charges against Zuma, Nxasana last year took a R17.3 million golden handshake and withdrew his court application to interdict the president from suspending him.
Corruption Watch and Freedom Under Law are again the organisations behind that challenge, which will likely be heard early next year. It’s big. If they win, the court might order that Nxasana gets his old job back, leaving Abrahams out in the cold.
Abrahams was very much in the hot seat at the NPA HQ gathering in August 2015 when, just two months into the job, he declared Jiba would no longer be prosecuted. He made it clear he had not made the decision to drop charges against her, pinning that on Marshall Mokgatle, regional head of the Specialist Commercial Crime Unit.
The NPA, too, was careful to emphasise that in terms of the act, Abrahams could only review decisions on whether or not to prosecute. Those decisions were, rather, taken by deputies. But almost from the moment it was announced that Abrahams - with 17 years experience - would take over from Nxasana, the question was raised: Would he give in to political pressure, with his first test being Jiba?
The DA’s Glynnis Breytenbach, a former prosecutor for the NPA, alleged Abrahams had been Jiba’s choice.
Until a year before his appointment to the top job, he had drawn admiration as head of the priority crimes litigation unit which had in its remit the investigation of crimes as contemplated in the Rome Statute of the International Criminal Court (ICC). And whatever his personal views around the ICC might have been, it was an issue related to it, that of Sudanese president Omar al-Bashir and his entry into and exit from South Africa despite a warrant from the court, which first thrust Abrahams properly into the public eye.
He prosecuted his first case when he was 21, encouraged to study law by the controversial late attorney-general of KwaZulu-Natal, Tim McNally. Abrahams went on to see through several matters aside from the Congolese plotters, affecting other African countries. These included Nigerian militant Henry Okah, the assassination of former Rwandan General Kayumba Nyamwasa and the murder of Patrick Karageya, former head of Rwandan Intelligence, in a hotel room in Sandton.
Holding a B Juris, B Proc and LLB from the University of Natal, Abrahams also dealt with the far right wing in prosecuting late AWB leader Eugene Terre’Blanche on terrorism charges and ex-AWB secretary-general André Visagie on possession of self-made arms.
Just before he was appointed NDPP, the last of the DRC accused was acquitted when High Court Judge Billy Mothle agreed they were the victims of a conspiracy between Kinshasa and the South African police.
Abrahams must have taken a shiver at that. And now, with rumours of conspiracy everywhere, he might be readying for his own shakedown.
Saturday Star