NPA head Advocate Shaun Abrahams shouldn’t have defended a decision by senior prosecutors to charge Finance Minister Pravin Gordhan with fraud if he didn’t know the contents and merit of the charges, the Pretoria High Court heard on Thursday.
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Advocate David Unterhalter, representing civil society organisations Freedom Under Law (FUL) and the Helen Suzman Foundation (HSF), told a full bench of the court the botched prosecution by the NPA against the minister and former SA revenue (Sars) commissioner Oupa Magashule and his deputy Ivan Pillay had harmed the credibility and integrity of the public prosecutions body.
Unterhalter said the national director of public prosecutions’ (NDPP) continued stay at the helm of the NPA was unacceptable, equating Abrahams’ conduct to that of an incompetent pilot, saying “you cannot put a pilot back in the cockpit if they have shown incompetence”.
The civil society groups want the court to grant them an urgent interdict compelling President Jacob Zuma to suspend Abrahams pending a judicial inquiry into his fitness to hold office.
Unterhalter argued the application by FUL and the HSF was two-fold: in the public interest and in the interest of the independence of the NPA. He said the organisations were worried that the NDPP and prosecutors who instituted the charges, Sibongile Mzinyathi, the director of public prosecutions, and special director of public prosecutions Torie Pretorius had damaged the NPA and the country’s economy.
Zuma, in his court papers opposing the application, said he had written to the trio asking them to provide him with reasons why he shouldn’t suspend them before November 28, 2016. He described the legal action by FUL and the HSF as premature and an abuse of the court process, since he was awaiting their responses.
Unterhalter argued that Zuma had instituted a process that brought about a significant delay without saying when he would make his decision on the matter.
The urgent interdict application by the two organisations wasn’t about them waiting for the president to exercise his discretionary powers to suspend the prosecutors but was about the objective facts that required an inquiry or suspension because of the damage of the failed prosecution, he added.
Abrahams came under severe criticism last month for announcing his intention to institute the fraud charges. At the end of October, however, he withdrew those charges, admitting he had not properly familiarised himself with the case, and it turned out there was none.
The NDPP withdrew them on October 31 after citing a 2009 memorandum from a legal executive at Sars, which showed that there were no reasons why Pillay could not retire early and be reappointed.
The case continues.