We are still investigating Gordhan - NPA

27 October 2016

Johannesburg - The NPA confirmed on Thursday that it was still investigating a case against Finance Minister Gordhan, former SARS commissioner Oupa Magashula and former deputy commissioner Ivan Pillay.

The three men are due to appear in the Pretoria Regional Court next Wednesday on charges of fraud. They relate to Gordhan and Magashula having approved an early retirement for Pillay in 2010, who was later rehired on a contract basis.

News24 asked the NPA why its prosecutors were asking the Hawks to question witnesses if its case had been completed.

It emerged on Wednesday that a senior SARS employee, Vlok Symington, had been asked to answer questions by the Hawks about a legal opinion he had previously written on Pillay’s retirement. The Mail & Guardian reported that Symington was mistakenly given an email which had allegedly been sent by SARS’s lawyers to commissioner Tom Moyane.

The Hawks and Moyane’s bodyguard allegedly held Symington against his will and assaulted him in order to get the email back.

NPA spokesperson Luvuyo Mfaku told News24 that the National Director of Public Prosecutions (NDPP) had considered representations from Magashula and Pillay and had asked for further investigations to be conducted to "clarify some issues".

"The review process is underway. Please give the NDPP space to apply his mind to the matter in a judicious manner," Mfaku said.

Still collecting evidence

The fact that the NPA had not concluded its investigation was the focus of an affidavit by Francis Antonie, director of the Helen Suzman Foundation.

In a supplementary affidavit filed in the High Court in Pretoria on Wednesday, Antonie said a subpoena served on the CEO of the Government Pensions Administration Agency proved that "the NPA does and had never completed sufficient investigations, nor had sufficient evidence to take the formidable decision to press charges" against Gordhan.

Antonie said in the affidavit that, nine days after NDPP Shaun Abrahams announced on October 11 that Gordhan would be charged with fraud, the Hawks and NPA were still collecting evidence to use against the finance minister.

The foundation and Freedom Under Law are challenging the NPA's decision to charge Gordhan in court and are applying for a permanent stay of prosecution.

After filing his founding affidavit last week, Antonie obtained "highly relevant" information that he intended placing before the court.

"Regretfully, the recent evidence which has emerged has confirmed all the fears of, and the case advanced by, the applicants in the founding affidavit."

The evidence he received was a copy of a subpoena issued to Krishen Sukdev, CEO of the Government Pensions Administration Agency. The agency administers funds on behalf of the Government Employees Pension Fund (GEPF).

'NPA elected to ignore any facts'

In the subpoena, Sukdev is asked to provide statistics of the approval of 3 000 applications for early retirement to the GEPF from various government employees who retired before they turned 60; five requests of staff members whose early retirement were approved by finance ministers between 2008 and 2010; and an affidavit "clarifying whether GEPF approves requests from various departments for staff members who retire before the age of 60 with full benefits".

Antonie said in the affidavit that "clearly, any evidence which spoke to the practices and lawfulness of early retirement of public servants with full pension had to be fully investigated and considered before charging (Gordhan)".

According to Antonie, this proved that the decision to charge Gordhan had failed to consider relevant evidence.

It appeared that the NPA had "elected to ignore any facts which had the potential to corroborate the lawfulness of the conduct in question".

This reinforced the submission that the charges against Gordhan were pursued for an ulterior purpose, Antonie said.

"That the prosecuting authorities are only now calling for the evidence and considering the applicable laws simply reinforces the unlawfulness of the charges and the abusive and precipitous manner in which they were pressed."

This article first appeared on News24, see here.