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 to the Government Employees Pension Fund.
Which of the elements of fraud could the NPA prove? Clearly there would be prejudice to Sars if it was made to pay out more than R1 million which it did not owe. But, on the available evidence, Sars did owe that money to the pension fund.
