Gordhan spy charges could be unconstitutional - law expert

2016-05-19 09:16
Pravin Gordhan (AP)

Pravin Gordhan (AP)

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Johannesburg - The 1982 Protection of Information Act, which would reportedly be used to charge Finance Minister Pravin Gordhan with espionage, could be unconstitutional.

According to criminal law expert James Grant, Sections 3 and 4, which prohibit obtaining and disclosing certain information, deal with espionage.

Grant said Section 3 of the 1982 act requires that to have committed an offence, the person has to have obtained the information to share it with a hostile entity, such as another state or organisation.

"You have to recall the framework and context under which this legislation was passed. It was the apartheid state clamping down as hard as it could on anyone, and the organisations it's talking about were of course the PAC, and the ANC at the time."
It was a draconian law with widely-framed phrases such as "acting against the interest of the Republic" or "conduct which is contrary to the interest of the Republic".

There was an argument to be made that these two offences, if not the entire act, were unconstitutional, because they were defined too broadly, he said.

Messy court battle

This (the 1982 Protection of Information Act) was the current legislation, but it would be replaced with the Protection of State Information Act, said media lawyer Dario Milo.

Milo said the new act would not apply to what Gordhan had allegedly done, but said there was an espionage offence in the new law.

If Gordhan was charged with espionage (under current legislation) it could turn into a long, messy court battle which would ultimately end up in the Constitutional Court, Grant said.

The Sunday Times reported that the Hawks wanted Gordhan and eight others charged for alleged illicit intelligence gathering and spying on taxpayers during his time as SA Revenue Service commissioner between 1999 and 2009. A so-called "rogue unit" within Sars was allegedly responsible for this.

The Hawks and NPA were reportedly waiting for "political go-ahead" before arresting him, the paper reported.

Hawks spokesperson Brigadier Hangwani Mulaudzi referred questions to the Presidency, which dismissed the report as the "work of dangerous information peddlers who wish to cause confusion and mayhem in the country".

However, NPA spokesperson Luvuyo Mfaku said the Hawks had brought a docket on the "rogue unit" to the prosecuting authority a few weeks ago, and that it was sent back for further investigation.

Weighing up options

No decision had been taken on prosecuting anyone, he said.

On Tuesday, Gordhan expressed dismay that he was being investigated.

Grant said if what Gordhan was alleged to have done was permitted by the Constitution, he could not be convicted of any crime, no matter what law was used to try and criminalise his conduct.

Even if he had obtained information to pass on to a hostile entity which intended to unseat the democratically-elected government, the lawfulness of his conduct would still need to be looked at.

"The test for that is whether there isn’t something in the Constitution which would permit him to do that, such as his freedom of expression, or his right to information. That would be the weighing-up process."

Grant said Gordhan's rights to the information and right to dispose of information would be weighed up against his obligations at the time.

However, Gordhan could still be charged under the act. The prosecution would not have to show that he intended to harm the country, but merely that he had been negligent. His defence then would have to be that a reasonable person in his position would have done the same.

Read more on:    npa  |  sars  |  pravin gordhan

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