NPA & Hawks bosses in war over Gordhan prosecution
As President Jacob Zuma's decision to ask National Prosecuting Authority boss Shaun Abrahams and two of his directors to tell him why they should not be suspended pending an inquiry into their fitness to hold office was announced on Tuesday, civil society groups who threatened court action said they've yet to decide whether they will halt litigation to force Zuma's hand.
Freedom Under Law (FUL) and the Helen Suzman Foundation (HSF) told African News Agency they received affidavits from Zuma and Abrahams, the latter attaching letters between him and the Directorate for Priority Crime Investigation (the Hawks) boss Berning Ntlemeza.
In the affidavits, Ntlemeza attempts to influence the National Director of Public Prosecutions (NDPP) to not withdraw fraud charges against Finance Minister Pravin Gordhan and two former South African Revenue Services (Sars) employees, Oupa Magashula and Ivan Pillay, over the latter's early retirement with full benefits.
"Mr Ntlemeza seems furious that his determination to prosecute these people has been reversed by Mr Abrahams, and the went as far as accusing him of acting in bad faith," said FUL board chair Judge Johann Kriegler.
ALSO READ: President Zuma requests written representation from NPA officials
"He [Abrahams] very firmly puts him in his place and says he [Ntlemeza] must stick to his job and has no business to tell him [Abrahams]how to do his job. In fact its grossly insulting. It's actually quite shocking that that a policeman in such a high position can act that way and with such arrogance."
Kriegler said FUL and HSF's lawyers would be putting their heads together to see whether the court application, set down for November 24, would go ahead.
"We must I think plot the course ahead. It looks on the face of it, the President heeded our request."
HSF executive director Francis Antonie said in the light of the latest revelations in affidavits filed, it might be wise to continue with the court action.
"What this indicates I think is that there's a great deal of confusion about reporting lines between the presidency, the Hawks and the NPA," said Antonie.
"I know I will feel a lot more clear when courts rule on the matter."
In the affidavit by Abrahams, an attached letter from Ntlemeza shows some hostility between the two men.
In Ntlemeza's letter to Abrahams, he said: "It is our considered view that our decision is not made in good faith on evidence that we have gathered as an investigative agency in this matter. Rather it seems to us that you make this decision based on the noise made by politicians, civil society lobby groups, and the media sympathetic to the accused."
Ntlemeza goes further by stating that it would "be improper for you as NDPP to stall or withdraw the prosecution of the accused persons in this matter".
In Abrahams replying correspondence he does not seem to budge, telling Ntlemeza he made the decision to drop the charges against Gordhan and his co-accused based solely on the merits of the matter.
Abrahams also tells Ntlemeza he has no power over prosecutions.
"In conclusion your legal and constitutional mandate does not permit you to advise me when to withdraw matters and/or when to proceed with prosecutions. I insist that you refrain from any further communications or conduct to this effect, failing which will have serious repercussions."
In his affidavit, he denied assertions by FUL and HSF that he is unfit and improper to hold office, insisting he did not have political masters dictating his moves.
"I deny that I am incompetent, unfit and improper for my office. To the contrary, I challenge the applicants to set out the exact prescripts of the law that I have allegedly contravened or breached," he argued.
He also stresses the principle of separation of powers, saying the court can't decide to suspend him.
"The court has no power to interfere with the President's decision-making process in that regard," said Abrahams.
"Directing the president to suspend employees of a constitutional institution would clearly violate the doctrine of separation of powers."
He however would not back down when dealing with the alleged existence of a rogue spy unit, saying "a decision will only be made once investigation is complete".
Briefing MPs last week, Abrahams said the investigation was "at an advanced stage".
"The NPA is not going to be held to ransom by civic organisations such as the applicants in order to prevent prosecution where there is a basis to prosecute," he said in the court papers.