Hearing to compel President Zuma to suspend three top prosecutors

Joint FUL/HSF media release:

Tomorrow at 10:00 a full bench of the Pretoria High Court will hear the joint application of the Helen Suzman Foundation and Freedom Under Law to compel President Zuma to suspend Advocate Shaun Abrahams, Dr Torie Pretorius SC and Advocate Sibongile Mzinyathi, pending an enquiry into their fitness to hold office.

Action on the NPA

Joint FUL/HSF media release: 

Last night, attorneys acting for Freedom Under Law and the Helen Suzman Foundation served an urgent application to order President Jacob Zuma to suspend Adv Shaun Abrahams, National Director of Public Prosecutions, Dr Torie Pretorius SC, Head of the Priority Crimes Litigation Unit and Adv Sibongile Mzinyathi, Director of Public Prosecutions for North Gauteng, pending an enquiry into their fitness to hold office. This power to suspend is granted to President Zuma by sections 12(6)(a) and 14(3) of the National Prosecuting Authority Act.

The National Prosecuting Authority, acting through these three officials, brought obviously baseless criminal charges against Finance Minister Pravin Gordhan, Mr Ivan Pillay and Mr Oupa Magashula. This undermined respect for our criminal justice system and punched a hole in the economy. After unprecedented public outrage, Adv Abrahams withdrew the charges.

All of this demonstrates that Adv Abrahams and his two colleagues are unfit for office. No competent prosecutor would have brought the charges, or would have defended them for as long as Adv Abrahams did. He should apologise and resign, but he has refused to do so.

Fortunately, the President has the power to suspend such officials. Given their obvious failings, it would be irrational of him not to exercise this power. President Zuma can still decide to do this on his own, and we urge him to do so. The Constitution requires him to act rationally – in this case, in our view to exercise his power to suspend. We are going to court to make sure the President does what the Constitution requires.

HSF and FUL to press on

Joint FUL/HSF media release:

On 1 November 2016 the HSF and FUL urged the President to suspend National Director of Public Prosecutions Shaun Abrahams together with two of his senior staff, pending an inquiry into their fitness for office. The President was given until 16:00 on 7 November to respond. Despite due delivery of the letter the Presidency has seen fit publicly to deny receipt and to ask for another two weeks to respond. The HSF and FUL regard this conduct as unacceptable and have informed the President that the urgent application foreshadowed in the letter is being instituted forthwith.

Letter to the President re the NPA

Joint FUL/HSF media release:

Yesterday, attorneys acting for Freedom Under Law and the Helen Suzman Foundation sent a letter to President Jacob Zuma, urging him to suspend Shaun Abrahams, the current National Director of Public Prosecutions, and Dr JP Pretorius SC and Sibongile Mzinyathi, pending enquiries into their fitness to hold office. This is a power granted to the President by sections 12(6)(a) and 14(3) of the National Prosecuting Authority Act.

The NPA, with Mr Abrahams’ support, brought obviously baseless criminal charges against Finance Minister Pravin Gordhan, Ivan Pillay and Oupa Magashula. Through this, Mr Abrahams has shown that he lacks the required conscientiousness and integrity to be entrusted with the responsibilities of the office of NDPP – in other words, he is not fit and proper. The same applies to Dr Pretorius and Mr Mzinyathi.

Mr Abrahams does not believe that he has done anything wrong. He is mistaken. We have thus urged the President to hold him, and his colleagues, accountable.

Application to set aside charges against the Minister of Finance Joint FUL/HSF media release

Joint FUL/HSF media release:

This morning, attorneys acting for Freedom Under Law and the Helen Suzman Foundation served an urgent application to have the recent criminal charges against Finance Minister Pravin Gordhan set aside. This is after we invited NDPP Shaun Abrahams to furnish us with more information about the charges, or to withdraw them voluntarily. He failed to do this, despite being given a week’s notice.

The charges are obviously without foundation. Relating to the early retirement and subsequent re-employment of Ivan Pillay, a former Deputy Commissioner of SARS, they are completely invalid, both legally and on any plausible reading of the facts.

At best, the charges reveal dizzying incompetence at the NPA and the Hawks. At worst, they confirm our suspicions: that the criminal justice system is being undermined to serve particular political interests.

The application by FUL and the HSF does not seek to protect particular individuals, or to take any side in factional battles. It is about protecting the machinery of the state from being undermined for malign purposes, thereby also preventing further damage to our fragile economy at a sensitive time.

The people of South Africa have a right to a criminal justice system that works for, not against, them. We are going to court to vindicate that right.

Advocates Jiba and Mrwebi struck off the roll of advocates

Media release:

Freedom Under Law welcomes this morning’s judgment in the High Court in Pretoria finding Advocates Jiba and Mrwebi dishonest and striking their names from the roll of advocates. This judgment demonstrates the courts’ determined opposition to corruption in high places and vindicates FUL’s decision some years ago to challenge the unlawful and ostensibly corrupt refusal to prosecute General Richard Mdluli. Our allegations have been upheld and the false attempts at refutation found to be untruthful.

Some time ago the Democratic Alliance applied to the Western Cape High Court for an order that the President suspend Advocate Jiba; his response was that this was premature since he was awaiting judgment in the present case. Now, especially in light of today’s clear and damning findings — and notwithstanding possible applications for leave to appeal and similar delaying tactics — we trust these two will be suspended forthwith and that the President will act swiftly.

At the same time we appeal to the National Director of Public Prosecutions to seize the opportunity to put an end to the actions that have tarnished the image of the institution he heads and done untold harm to the Rule of Law. FUL would, for instance, welcome the genuine continuation of the Mdluli prosecution on the outstanding corruption-related charges and the immediate and unconditional withdrawal of the spurious charges against Advocate Glynnis Breytenbach and her attorney, as also the threatened action against Minister Pravin Gordhan. The country expects no less of Advocate Abrahams.

 

Threatened prosecution of the Minister of Finance and former SARS colleagues

Joint FUL/HSF media release

We believe we speak on behalf of all fair-minded South Africans, irrespective of political persuasion, in showing our support for the Minister of Finance and his former colleagues at SARS and our outrage at this attack on them.

Not only are the charges baseless, but the manner in which they have been pursued is clearly calculated to besmirch the names of the individuals and has predictably already seriously impaired our national economy. Those behind this campaign of public vilification and persecution must have known this from the outset. Recent reports have suggested corrupt motives involving massive sums of money and/or tension between the Presidency and the Treasury. We do not have to speculate.

We know that, whatever the motives, the agency being primarily used to pursue the campaign is the Hawks, which is headed by a man whose appointment and fitness for office are currently being challenged in the courts. So is the hounding from office of his predecessor and the effective destruction of the senior command structure of not only the Hawks but of IPID and, even more ominously, the National Prosecuting Authority itself.

We also know that the whole story of the so-called “rogue unit”, with its dubious origins, was apologetically withdrawn by the Sunday Times, the chosen channel for its distribution, months ago.

Most disturbing of all is that none of those now being publicly humiliated was ever given a proper opportunity to answer the charges in the course of the one-sided “investigations” of unsubstantiated allegations. Dragging in Minister Gordhan is all the more outrageous. The timing and the manner of the steps against him evidence ill-will towards a loyal public servant who, together with then Minister Manuel and their team of reformers, created arguably the most efficient government agency of the new South Africa. He does not deserve this. Neither do we.

Constitutional Court judgment: Nkabinde and another v The Judicial Service Commission and others

Media release

Freedom Under Law respectfully welcomes and endorses the following statement by the Constitutional Court in its judgment yesterday in the case of Nkabinde and another v The Judicial Service Commission and others:

In conclusion, we would be failing in our duty if we did not take this opportunity to emphasise that it is in the interests of justice that the matter of the complaint against Judge President Hlophe should be dealt with and concluded without any further delay. The events that gave rise to the complaint occurred in 2008. Eight years later, the matter has not been finalised. It is in the interests of justice that this matter be brought to finality.

 We believe it is high time the judge be given the opportunity to explain (under oath, we trust) why and how he saw fit to raise and discuss the admissibility of evidence against Mr Zuma – then not yet President – with judges of the Constitutional Court at a stage when they were considering their verdict.

 

 

Corruption Watch and Freedom Under Law go to court to review Nxasana’s R17,3-million settlement agreement

Joint FUL/Corruption Watch media release

On 14 May 2015, a settlement agreement was concluded between President Jacob Zuma, the Minister of Justice Michael Masutha and the former National Director of Public Prosecutions (NDPP), Mxolisi Nxasana. Corruption Watch and Freedom Under Law are of the view that the settlement agreement and the decision to authorise such agreement were unlawful and unconstitutional and should therefore be declared invalid and set aside by the North Gauteng High Court. The organisations have also sought an order that Nxasana refund any money paid to him in terms of the settlement agreement.

The settlement agreement provided for the payment of R17,3-million to Nxasana in lieu of his agreement to relinquish his post as NDPP and to withdraw his court action against the President and the minister, in terms of which he had challenged his suspension. The settlement resulted in clear contraventions of the National Prosecuting Act, 32 of 1998 and the Public Finance Management Act, 1 of 1999. In particular, the NPA Act provides for very limited grounds for the removal or resignation of an NDPP and does not make provision for the type of settlement agreement concluded between Nxasana and the President.

Furthermore, in light of the fact that the President is currently in jeopardy of prosecution under charges which were withdrawn previously by an Acting NDPP – and which may be reinstated – these public-interest bodies consider any decision by the President to appoint or remove an NDPP to be a breach of his duties under section 96(2)(b) of the Constitution. The section provides that the President is not to act in a manner which exposes himself to any situation involving the risk of a conflict between his official responsibilities and his private interests. Both organisations have therefore submitted that Nxasana should still hold the office of the NDPP and that, due to the President’s conflict of interest, his recent appointment of Shaun Abrahams as NDPP was also unlawful.

Corruption Watch and Freedom Under Law are committed to supporting the criminal justice system and the National Prosecuting Authority and are therefore deeply concerned about the flagrant disregard of national legislation, including constitutional provisions. There has been an untrammelled abuse of public power and the creation of unlawful precedent relating to the removal and appointment of the NDPP, a position which has been plagued with controversy.

 The submissions can be accessed at:

 

Statement on comments made by Judge Mabel Jansen

Media release

Freedom Under Law (FUL) is shocked by Judge Mabel Jansen’s generalisations about rape by black men on Facebook. These statements are simply unacceptable – doubly so when made by a serving judge.

FUL calls for a speedy investigation of the matter by the Judicial Service Commission.

Consistent with what FUL has advanced in all cases of a serious complaint against a judge, FUL also calls for Judge Jansen to be placed on special leave in the meanwhile. Black accused or litigants cannot be expected to have confidence in their matters being heard by Judge Jansen until the Judicial Service Commission has made its determination.