#PravinGordhan struggling to understand the nature of NPA charges. Aren’t we all?

Lawyers speak a different language and true to form, Finance Minister Pravin Gordhan’s counsel have remained true to that approach. In plain language, though, what they are telling us is the NPA is clutching at straws. For one thing, they’ve dropped their allegations that SA Revenue Services operated a “Rogue” unit. But for the other, getting their charge of fraud to stick is wildly optimistic. The lawyers point out that fraud is defined as the intentional misrepresentation that causes harm to another. Little wonder Gordhan and his lawyers are battling “to appreciate the nature of the charges.” The markets have no such quandary. The uncertainty pushed the Rand 50c weaker against the US Dollar. – Alec Hogg   

Statement by lawyers Gildenhuys Malatji on behalf of Finance Minister Pravin Gordhan

We have received the summons below directed to Minister Pravin Gordhan to appear in the Regional Division, Pretoria Court 16 on 2 November 2016.

The summons was received by Minister Gordhan’s office in circumstances where we had expected that the National Director of Public Prosecutions (“NDPP”) will interact with us in light of the correspondence exchanged between our office and the NDPP dating back to 18 May 2016.

Pravin Gordhan, South Africa's finance minister. Photographer: Christopher Goodney/Bloomberg
Pravin Gordhan, South Africa’s finance minister. Photographer: Christopher Goodney/Bloomberg

We had repeatedly requested that the NDPP afford Minister Gordhan the opportunity to make written and/or oral representations before making a decision on whether to prosecute or not.

In particular, the NDPP, Adv. S. K. Abrahams, advised us on 25 August 2016 that he will only consider our request to make representations to him on whether to initiate a prosecution or not once the investigation has been concluded and a docket has been submitted to the National Prosecuting Authority.

It is surprising that we have only received a letter dated 4 October 2016 but only sent to our office this morning advising that Minister Gordhan is an accused person.  The correspondence exchanged between our office and that of the National Prosecuting Authority is attached.

The other difficult matter for Minister Pravin Gordhan to appreciate is the nature of the charges.

Read also: NPA boss on Gordhan: Days of not holding Govt officials accountable are over

We were firstly advised that he is not a suspect during May 2016.

In August 2016, Minister Pravin Gordhan was advised that he should give a warning statement which by its very nature meant that he is now considered to be a suspect in relation to very clearly defined  charges.

It was contemplated by the HAWKS that he has contravened the provisions of Sections 1, 34 and 81(2) of the Public Finance Management Act, 1 of 1999, that he was guilty of corruption in terms of Section 3, 4 and/or 10 of the Prevention of Corrupt Activities Act, 12 of 2004 as well as Section 3 of the National Strategic Intelligence Act, 39 of 1994.

These related to the establishment of an investigative unit at SARS and the early retirement of Mr Ivan Pillay as SARS Deputy Commissioner.

The charges now preferred against Minister Pravin Gordhan are charges of fraud alternatively theft insofar as it relates to Mr Pillay’s early retirement.

Fraud is defined as “the unlawful and intentional making of a misrepresentation which causes actual prejudice or which is potentially prejudicial to another”.

In order to succeed with proving the crime of fraud, the State must establish the elements of the crime which are defined as first, a misrepresentation, second, prejudice or potential prejudice to another, third, unlawfulness and lastly an intention to so prejudice.

The Minister is taking counsel on all available legal avenues to bring this matter to an expedited end.

Statement by the Ministry of Finance

Minister Pravin Gordhan confirms that his office has received and signed for a summons issued from the Hawks this morning.  It is most unfortunate that the Hawks have, once again, chosen to initiate legal proceedings at a moment that appears calculated to maximise the damage inflicted on the economic well- being of South Africans and essential processes of government.

Minister Gordhan wishes to place on record that he will continue to cooperate fully and in an exemplary manner in the execution of all legal requirements that are placed upon him. To this end, the Minister’s legal team have had extensive interactions with the Hawks over the last six months, including providing for clear communication channels in the even that any further legal proceedings are initiated.

Despite this, the Hawks chose to arrive unannounced at the Minister’s private residence this morning. On being told that the Minister has left for another engagement they preceded to the National Treasury offices and served the summons. Shortly thereafter, and again without the courtesy of a prior indication, the National Director of Public Prosecutions convened a press conference to unveil a set of charges that are patently without merit.

At the press conference, Advocate Shaun Abrahams chose to dwell extensively on allegations concerning the SARS investigative unit under question, which he is not yet able to prosecute. He then turned to the content of the summons, which is concerned with the matters of an administrative – not criminal – nature.

It is quite clear that these legal proceedings are contaminated by abuse for political ends. Speaking at the Gauteng Open Tender Seminar this morning –- Minister Gordhan said, “This is a moment where all South Africans need to ask whose interests these people in the Hawks, the NPA and the NDPP are advancing. Where do they get their political instructions from and for what purpose.”

Since his appointment in December last year, Minister Gordhan has worked hard to build confidence in the future of the South African economy, establish consensus on measures to reignite economic growth and affirm sound fiscal management. The Minister wishes to assure the South African citizens that he will continue to serve the country and advance these objectives as long as called to do so by the President. Under Minister Gordian’s guidance, National Treasury is finalising the Medium Term Budget Policy Statement, which will be tabled in Parliament on 26 October.

One Monday afternoon, the Minister returned from a programme of international engagements, together with leaders from business and labour in which South Africa’s case was argued with force and conviction. Speaking to investors, ratings agencies, international policy makers, and the team argued that there are sound reasons for optimism in South Africa’s growth potential

The Minister is ready to subject himself to a legitimate process of the law to bring this matter rest in the interest of the country as soon as possible.

Minister Gordhan said, “I intend to continue doing my job. The cause of defending ethical leadership in government and throughout society is too important to allow ourselves to be deterred by this kind of harassment. The fight against corruption, maladministration, and waste of public resources will continue”.

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