Adriaan Basson

Gordhan's NPA saga: This is selective prosecution at its worst

2016-10-11 15:40

Adriaan Basson

I was first introduced to the concept of “selective prosecution” 13 years ago when I attended a course on investigative journalism at the Institute for the Advancement of Journalism (IAJ) in Johannesburg.

The person who introduced me to this concept was a feisty Dutch journalist with flaming red hair and a passion for the truth. Her name was Evelyn Groenink and she spent a large part of her career investigating the political assassination of ANC activist Dulcie September in Paris in 1988.

It was 2003 and the big story of the day was the Scorpions’ investigation into then deputy president Jacob Zuma and his financial adviser Schabir Shaik.

I was intrigued by the case and studied every little part of what we now commonly refer to as “state capture”. Between Zuma and Shaik, they had tried to capture the economy of first KwaZulu-Natal and later the country through the arms deal.

The Scorpions’ case was simple: Shaik paid the Zuma family’s expenses and in exchange, Zuma boosted Shaik’s Nkobi Holdings with foreign investors who were keen to spend their money in South Africa.

Bigger fish

Why was Groenink so upset about the case?

As a student of arms deals, she took us through the background of how the deal was put together and attempted to show us what a small part of the deal actually concerned Shaik and Zuma.

I got it. “Why don’t you rather investigate (former president Thabo) Mbeki?” she berated us. She told us we were all mesmerised by the Scorpions and didn’t want to explore other narratives outside of the Zuma/Shaik case.

Look at BAE and Saab and Ferrostaal and ThyssenKrupp, she said. The big European arms manufacturers are the real ones deserving of a forensic investigation; not some poor politician from KwaZulu-Natal.

Groenink continued to argue that Shaik and Zuma were victims of “selective prosecution”. Mbeki and the Scorpions wanted to portray them as the only villains of the arms deal while some other bigger fish got away scot-free.

I was bothered by Groenink’s analysis and challenged her on some of her arguments. What were the Scorpions supposed to do after they had stumbled upon evidence implicating Shaik and Zuma? Turn a blind eye?

And, I argued, Zuma was by no means a small fish. He was already deputy president of the country and the ANC and was well-positioned to succeed Mbeki. Surely we couldn’t have a president who would make himself guilty of any crime, however “small”?

But I understood she was trying to teach us something bigger that day. That a prosecuting authority was open to abuse by the executive in the selection of cases it brings before a court of law.


What I didn’t know at the time was that Groenink was married to a man called Ivan Pillay.

Pillay, I would later find out, was a very senior employee of the South African Revenue Service (Sars) and instrumental to then Sars commissioner Pravin Gordhan’s success in turning around an old-school apartheid machine into a slick, modern tax collection agency.

Pillay ended his career at Sars as deputy head, responsible for investigations. He acted as commissioner after Gordhan’s successor, Oupa Magashula, was suspended for a protracted period.

I thought of Groenink on Tuesday morning as Advocate Shaun Abrahams tried to persuade the South African public that the National Prosecuting Authority (NPA) he leads was acting in the best interest of the public when it decided to charge Pillay, Gordhan and Magashula with fraud.

Oh the irony, I thought.

Here was South Africa’s chief prosecutor defending for over an hour why the State was turning its biggest crime-fighting guns on these three men for approving an early pension pay-out for Pillay to fund his child’s university fees.

I am not a lawyer and don’t know if what Pillay had requested, Magashula had recommended, and Gordhan had approved constitutes fraud.

What I do know is that this is not the type of case that should be handled by the Hawks’ crimes against the state (Cats) unit and the NPA’s priority crimes litigation unit (PCLU).

And that is why Abrahams and General Berning Ntlemeza, head of the Hawks, should face valid questions of selective prosecution.

Key questions

Can Abrahams and Ntlemeza honestly say with a straight face (“so help me God”) that Pillay’s pensions pay-out of R1.3m constitutes an alleged crime against the state that should be handled by the unit in the NPA that is used to prosecute nuclear-smuggling and terrorism?

Surely not.

And that’s why this case reeks of political interference. While the markets plummet and a downgrade by international ratings agencies in December now looks like a fait accompli (with devastating effects for all of us, particularly the poor), the following questions remain unanswered:

  • Why did Abrahams spend more than half of his press conference criticising Gordhan and Pillay for the establishment of a so-called intelligence unit inside Sars, yet they are not facing criminal charges for this?
  • If these charges are still being formulated, why the haste to announce the prosecution on the pension pay-out?
  • Why did Ntlemeza refer a straight-forward fraud investigation to the Cats unit?
  • Why is the same attention not given to other, much bigger corruption, fraud and money-laundering cases that have been gathering dust on the desks of the Hawks and the NPA for years?
  • Is it a coincidence that Abrahams had assigned his close confidante and mentor Advocate Torie Pretorius, head of the PCLU in the NPA, to the case after Abrahams had promoted Pretorius to this position shortly after his (Abrahams’) appointment (Pretorius, a white man close to retirement, replaced a black woman who acted in the position)?
  • Why is the pension pay-out-case handled by the PCLU at all? What makes it a priority crime – the mere involvement of Gordhan?
  • What other cases are currently not receiving the attention of Pretorius and the PCLU to focus energy and resources on the pension pay-out-case?
  • Have the Cats unit in the Hawks and the PCLU in the NPA initiated investigations into alleged state capture by the Gupta and Zuma families? Surely there is enough evidence in the public domain to justify a thorough criminal investigation by these units?
  • Why aren’t the Cats and PCLU units involved in the investigation into allegations that millions of rand paid by Prasa for new locomotives and trains were destined for Zuma and/or the ANC? Apparently only one Hawks detective is looking into this case.

Until these questions are answered thoroughly, I am unable to conclude that Groenink’s explanation of selective prosecution isn’t applicable to this case. Only this time, the target isn’t Zuma, but her husband and his long-time comrade.

- Basson is News24's Editor.


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