Many who support the faction that wishes to get rid of Finance Minister Pravin Gordhan argue that there is nothing wrong with the Hawks investigating and arresting him because “no one is above the law”. Gordhan, they argue, will not be convicted unless he is guilty of a crime.
This argument would be tenable if the investigation related to the commissioning of an identifiable criminal offence. The problem is there is no information publicly available indicating that it does.
It would be unlawful for the Hawks to investigate an individual for having a sparkling personality. It is not a criminal offence to have a sparkling personality.
If the Hawks were to investigate Idols judge Somizi Mhlongo with the help of the NPA for having a sparkling personality they would be abusing their power in order to intimidate or persecute him in an unlawful manner.
It would constitute a flagrant abuse of the criminal justice system by the Hawks and the NPA.
As the Supreme Court of Appeal stated in its judgment of National Director of Public Prosecutions v Zuma, a prosecution will be wrongful if reasonable and probable grounds for prosecuting are absent.
This means for a prosecution to be lawful there needs to be prima facie evidence of the breach of one or more criminal law provisions. The same holds true for a criminal investigation by the Hawks. Investigating a person for doing something that is not a criminal offence would constitute a flagrant abuse of power.
When judging whether the investigation of Gordhan by the Hawks and NPA is lawful or amounts to wrongful persecution because of a political power struggle, it is important to establish the possible legal grounds for the investigation.
This seems almost impossible to do. Neither the Hawks nor the National Director of Public Prosecutions (NDPP), Shaun Abrahams, has pointed to any criminal provision which might justify the probe. This is unfortunate as it has created a strong suspicion – right or wrong – that powerful individuals are using the Hawks and NPA to try to get rid of the minister because he holds the keys to the fiscus.
The NDPP confirmed that the NPA had received a docket from the Hawks regarding the possible arrest and prosecution of Gordhan and other former members of the SA Revenue Service (SARS). However, Abrahams refused to say what charges were being investigated.
That the docket was referred back to the Hawks “with guidance” suggests the NPA asked the investigators to look for more proof that a crime had indeed been committed.
But what could this alleged criminal offence possibly be?
The Sunday Times reported that Gordhan was being investigated for “espionage”. This claim is legal nonsense as there is no such crime as “espionage” in SA law.
Perhaps they were really referring to various criminal offences created by the draconian apartheid-era Protection of Information Act, 84 of 1982. This act will be replaced by the Protection of State Information Bill (the so-called Secrecy Bill) once it is signed into law.
But at present, the apartheid-era act regulates the secrecy of government documents and is the law that would be applied.
Section 3 of the Act prohibits any person from disclosing secret documents to a foreign state or its agents. Unless Gordhan leaked defence secrets (which, let’s face it, seems laughable) section 3 is not at issue here.
Section 4 is more likely to be applicable. However, the section is so broad it almost certainly constitutes an unjustifiable and thus unconstitutional limitation on the right to freedom of expression and it is almost certainly invalid.
Section 4 is typical of the kind of authoritarian legislation passed in the time of President PW Botha’s regime. The entire act is steeped in paranoia and secrecy and cannot be squared with a democratic state.
It would not stand up in court because it criminalises the disclosure of even the most harmless and innocuous information. It also prohibits leaking information about corruption and abuse of power – even when this has absolutely nothing to do with the security of the state. Moreover, section 4 does not contain a public interest exception, which means it could, in its current format, be used to hide corruption, maladministration, abuse of power or criminal acts.
The act also contains several reverse onus provisions which the Constitutional Court has declared unconstitutional. I am happy to place a sizable bet that section 4 would never pass constitutional muster.
This view is not controversial. It would therefore be surprising if the Hawks and NPA relied on this obviously unconstitutional and draconian provision to justify their investigation into Gordhan. It would also cast serious doubts on the commitment of the Hawks and NPA to SA’s constitutional democracy.
Another possible law they may rely on is the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002.
Section 49 prohibits any person from intentionally intercepting or attempting to intercept or authorising the interception of any communication being transmitted. This deals with both phone and personal conversations.
This ban does not apply to the interception of communication by somebody who is party to a communication. In other words, you are permitted to record (or “intercept”) a conversation you are having, either on the phone or in person.
The act allows several other exceptions for law-enforcement officers and the like and for businesses to intercept communications in certain circumscribed instances.
For there to be any legal basis to investigate Gordhan for breaching this provision, there would need to be some evidence that he authorised SARS officials to intercept the communications of others without having had permission.
The Sunday Times – reporting allegations leaked to it – previously claimed the investigative unit set up by SARS managed a brothel and eavesdropped on politicians and other taxpayers in contravention of this law. However, earlier this year the newspaper retracted many of the allegations it had published as some were clearly false.
Moreover the former head of SARS’ investigative unit, Johann van Loggerenberg, also denied that the unit illegally acquired equipment and assets, including eavesdropping equipment, to spy on taxpayers.
“As cost centre manager, I would have been aware of acquisitions of any equipment of any kind. None of these units… acquired any specialised or listed equipment that could be used for ‘intelligence gathering’. They also did not use such equipment to spy on persons.”
This denial is surprisingly emphatic and detailed. Usually potential criminal suspects do not deny allegations of wrongdoing in detail for fear of being caught in a lie when testifying in their own defence.
Further, the National Strategic Intelligence Act 39 of 1994 (originally invoked by those pointing fingers at SARS officials and Gordhan) does not prohibit a body such as SARS from establishing an investigative unit and gathering intelligence.
Nor does it prohibit SARS from gathering intelligence covertly. The act does state that covert gathering of intelligence relating to a potential threat to the national security and stability of SA would be unlawful.
Spying on taxpayers could not possibly be equated with gathering intelligence about potential threats to national security.
In any event, the act does not create any criminal offences so even if the SARS unit did gather intelligence relating to potential threats to national security it could not possibly be a criminal offence.
If the Hawks and NPA are investigating breaches of the National Strategic Intelligence Act, they are abusing their power and investigating something that is not a criminal offence. It would, in fact, be equal to investigating somebody for the “crime” of having a sparkling personality.
I have been unable to find any other legislation that may be relied on to justify a criminal investigation against the Minister of Finance. Unless the Hawks and NPA take us into their confidence about the nature of the alleged criminal offences being investigated, I for one will remain in the dark about the legal justification.
Pierre de Vos teaches constitutional law at UCT where he is deputy dean and the Claude Leon Foundation chair in Constitutional Governance. His blog is Constitutionally Speaking
Hawks prosecution mystery
This argument would be tenable if the investigation related to the commissioning of an identifiable criminal offence. The problem is there is no information publicly available indicating that it does.
It would be unlawful for the Hawks to investigate an individual for having a sparkling personality. It is not a criminal offence to have a sparkling personality.
If the Hawks were to investigate Idols judge Somizi Mhlongo with the help of the NPA for having a sparkling personality they would be abusing their power in order to intimidate or persecute him in an unlawful manner.
It would constitute a flagrant abuse of the criminal justice system by the Hawks and the NPA.
As the Supreme Court of Appeal stated in its judgment of National Director of Public Prosecutions v Zuma, a prosecution will be wrongful if reasonable and probable grounds for prosecuting are absent.
This means for a prosecution to be lawful there needs to be prima facie evidence of the breach of one or more criminal law provisions. The same holds true for a criminal investigation by the Hawks. Investigating a person for doing something that is not a criminal offence would constitute a flagrant abuse of power.
When judging whether the investigation of Gordhan by the Hawks and NPA is lawful or amounts to wrongful persecution because of a political power struggle, it is important to establish the possible legal grounds for the investigation.
This seems almost impossible to do. Neither the Hawks nor the National Director of Public Prosecutions (NDPP), Shaun Abrahams, has pointed to any criminal provision which might justify the probe. This is unfortunate as it has created a strong suspicion – right or wrong – that powerful individuals are using the Hawks and NPA to try to get rid of the minister because he holds the keys to the fiscus.
The NDPP confirmed that the NPA had received a docket from the Hawks regarding the possible arrest and prosecution of Gordhan and other former members of the SA Revenue Service (SARS). However, Abrahams refused to say what charges were being investigated.
That the docket was referred back to the Hawks “with guidance” suggests the NPA asked the investigators to look for more proof that a crime had indeed been committed.
But what could this alleged criminal offence possibly be?
The Sunday Times reported that Gordhan was being investigated for “espionage”. This claim is legal nonsense as there is no such crime as “espionage” in SA law.
Perhaps they were really referring to various criminal offences created by the draconian apartheid-era Protection of Information Act, 84 of 1982. This act will be replaced by the Protection of State Information Bill (the so-called Secrecy Bill) once it is signed into law.
But at present, the apartheid-era act regulates the secrecy of government documents and is the law that would be applied.
Section 3 of the Act prohibits any person from disclosing secret documents to a foreign state or its agents. Unless Gordhan leaked defence secrets (which, let’s face it, seems laughable) section 3 is not at issue here.
Section 4 is more likely to be applicable. However, the section is so broad it almost certainly constitutes an unjustifiable and thus unconstitutional limitation on the right to freedom of expression and it is almost certainly invalid.
Section 4 is typical of the kind of authoritarian legislation passed in the time of President PW Botha’s regime. The entire act is steeped in paranoia and secrecy and cannot be squared with a democratic state.
It would not stand up in court because it criminalises the disclosure of even the most harmless and innocuous information. It also prohibits leaking information about corruption and abuse of power – even when this has absolutely nothing to do with the security of the state. Moreover, section 4 does not contain a public interest exception, which means it could, in its current format, be used to hide corruption, maladministration, abuse of power or criminal acts.
The act also contains several reverse onus provisions which the Constitutional Court has declared unconstitutional. I am happy to place a sizable bet that section 4 would never pass constitutional muster.
This view is not controversial. It would therefore be surprising if the Hawks and NPA relied on this obviously unconstitutional and draconian provision to justify their investigation into Gordhan. It would also cast serious doubts on the commitment of the Hawks and NPA to SA’s constitutional democracy.
Another possible law they may rely on is the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002.
Section 49 prohibits any person from intentionally intercepting or attempting to intercept or authorising the interception of any communication being transmitted. This deals with both phone and personal conversations.
This ban does not apply to the interception of communication by somebody who is party to a communication. In other words, you are permitted to record (or “intercept”) a conversation you are having, either on the phone or in person.
The act allows several other exceptions for law-enforcement officers and the like and for businesses to intercept communications in certain circumscribed instances.
For there to be any legal basis to investigate Gordhan for breaching this provision, there would need to be some evidence that he authorised SARS officials to intercept the communications of others without having had permission.
The Sunday Times – reporting allegations leaked to it – previously claimed the investigative unit set up by SARS managed a brothel and eavesdropped on politicians and other taxpayers in contravention of this law. However, earlier this year the newspaper retracted many of the allegations it had published as some were clearly false.
Moreover the former head of SARS’ investigative unit, Johann van Loggerenberg, also denied that the unit illegally acquired equipment and assets, including eavesdropping equipment, to spy on taxpayers.
“As cost centre manager, I would have been aware of acquisitions of any equipment of any kind. None of these units… acquired any specialised or listed equipment that could be used for ‘intelligence gathering’. They also did not use such equipment to spy on persons.”
This denial is surprisingly emphatic and detailed. Usually potential criminal suspects do not deny allegations of wrongdoing in detail for fear of being caught in a lie when testifying in their own defence.
Further, the National Strategic Intelligence Act 39 of 1994 (originally invoked by those pointing fingers at SARS officials and Gordhan) does not prohibit a body such as SARS from establishing an investigative unit and gathering intelligence.
Nor does it prohibit SARS from gathering intelligence covertly. The act does state that covert gathering of intelligence relating to a potential threat to the national security and stability of SA would be unlawful.
Spying on taxpayers could not possibly be equated with gathering intelligence about potential threats to national security.
In any event, the act does not create any criminal offences so even if the SARS unit did gather intelligence relating to potential threats to national security it could not possibly be a criminal offence.
If the Hawks and NPA are investigating breaches of the National Strategic Intelligence Act, they are abusing their power and investigating something that is not a criminal offence. It would, in fact, be equal to investigating somebody for the “crime” of having a sparkling personality.
I have been unable to find any other legislation that may be relied on to justify a criminal investigation against the Minister of Finance. Unless the Hawks and NPA take us into their confidence about the nature of the alleged criminal offences being investigated, I for one will remain in the dark about the legal justification.
Pierre de Vos teaches constitutional law at UCT where he is deputy dean and the Claude Leon Foundation chair in Constitutional Governance. His blog is Constitutionally Speaking
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