To onlookers, it seems inescapably obvious that South Africa’s finance minister Pravin Gordhan has beentargeted by senior political figures who do not want him to do his job properly – with a criminal case against Gordhan the most obvious sign he is being hounded out of office.
Rest assured: the National Prosecuting Authority (NPA) cannot win its case of fraud, or alternatively theft, against Gordhan. This is the opinion of legal expert Cathleen Powell, who has worked through the chargeswith a fine tooth comb. She has gone one step further, analysing the legal technicalities on the jurisdiction of the NPA and the Hawks investigative unit.
Powell comes to the conclusion, based on a careful assessment of the facts and legislation, that the law in this case is being used as an instrument for political gain. Powell’s in-depth reading of the matter underscores that is high time for an overhaul of the people who are running our law enforcement agencies. The separation of powers is critical in maintaining democracy.
Along with state capture, the lines have become blurred between the executive and legislative organs of state. – Jackie Cameron
By Cathleen Powell*
Earlier this month South Africa’s National Prosecuting Authority (NPA) laid criminal charges against the country’s Finance Minister Pravin Gordhan.
The NPA does have the power under law to charge people with crimes – that’s its job. But do the charges against Gordhan stand up to scrutiny? And did the NPA follow the correct processes in charging him?
Closer examination shows that the NPA is bringing a case it cannot win. Indeed, the weaknesses of the case are so glaring that any vaguely competent criminal lawyer should have been able to spot them. Secondly, it is doing so in a manner which belies its claim to be protecting and enforcing the law.
This case may therefore have less to do with the law than with the pursuit of a political agenda. If so, law has ceased to be the basis of a just and fair society – and instead become an instrument for political gain.
The charge sheet brings a case of fraud against Gordhan, with an alternative charge of theft. Both charges are meant to arise from his approval of early retirement by Ivan Pillay from the South African Revenue Services (SARS), and his rehiring of Pillay as Deputy Commissioner on a fixed-term contract.
Related to this is the so-called “penalty” which SARS paid to Pillay’s pension fund, which allowed him to enjoy full pension benefits (as though he had retired at the statutory age). Gordhan was commissioner of SARS at the time these events took place.
The merits of the charges
We can dispose of the charge of theft without further ado. Gordhan cannot be guilty of theft if he did not appropriate the money that was paid out for Pillay’s benefit. There has never been any indication that anybody other than Pillay benefited from his early retirement on full benefits.
To prove the main charge – fraud – the NPA would have to establish that Gordhan unlawfully and intentionally made a misrepresentation which caused prejudice or potential prejudice to another (or to the state).
According to the charge sheet, these requirements are all met because Gordhan “unlawfully, falsely and with the intent to defraud” pretended to SARS that it was liable to pay R1 141 178.11 (US$78 000) to the Government Employees Pension Fund.
Source: http://www.news24.com
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