A smear, a charade, a persecution
I’ve recently heard people say: “Well, if he has nothing to hide, why doesn’t the minister simply go and make this warning statement? A minister isn’t above the law.”
With respect, these people are completely wrong and I welcome this opportunity to explain why I say so.
First, let’s make clear what a warning statement is. The police have to investigate crime for prosecution in court.
The police and the prosecution service must investigate and build a case against you. You are under no obligation to help them.
They have no power to order you to appear before them, whether to make a statement or for any other reason. Our law doesn’t work like that.
If and when they think they have a reasonable case against you, they must bring you before court to answer that case, using the least invasive way of bringing the suspect before court.
Ordinarily in the case of someone who is obviously not going to evade trial – for example, a government minister – this would be by summons.
To subject such a person to the humiliation of an arrest is entirely unnecessary and constitutionally questionable.
So, clearly there can be no good reason to arrest Minister Pravin Gordhan – unless it is to press him to make a warning statement.
Of course, it is perfectly proper for an investigating officer and/or prosecutor acting in good faith to invite any suspect, if he or she so wishes, to furnish a response to what the investigation seems to suggest.
This is a proper exercise of the power and duty of lawful investigation – and if the response is adequate, that should be the end of the matter.
Unfortunately, such an “invitation to make a warning statement”, instead of being a fair opportunity to nip a prosecution in the bud, can also be used to exert pressure on a suspect in what seems to be a proper manner.
The threat of arrest, combined with the warning contained in the “request” or “invitation”, is calculated to intimidate the suspect. You don’t have to say anything, but you’re confronted with the threat of arrest if you don’t.
And the technique goes further. The “invitation”, containing more or less unformulated allegations, is not discreetly given to the suspect in a confidential attempt to defuse the case.
Somehow, mysteriously, the accusations and the impending arrest are leaked to the media – and the world watches as the suspect arrives at the announced time and place to face the music.
And the normal reaction of decent people is: “Where there’s smoke, there must be fire. Otherwise, why doesn’t this person just speak up and clear his name?”
The current case of Minister Gordhan is a good example of the fundamental injustice of such a process.
At no stage was there any reason to subject him to arrest, and no reason to warn him of anything.
There was no legitimate reason to call upon him to say anything.
If there was any merit to the allegations, it was for the Hawks and the prosecuting authorities to decide whether they had a good enough case to formulate a charge or charges and summon him to court to answer that case.
What is happening here is entirely different. Months ago, the Hawks sent the minister a series of written questions relating to events that had allegedly occurred at the SA Revenue Service years before.
The questions were splashed all over the media. He answered them fully, comprehensively refuting the factual and legal contentions levelled against him – and the Hawks acknowledged in a formal letter that he was not a suspect.
On Monday afternoon, the Hawks delivered an imperious letter via the minister’s attorneys, whereby he is “requested to give his version on the allegations as outlined here under in a warning statement” and they are to “secure your client Mr Pravin Gordan (sic) to meet Brigadier Xaba … for a warning statement without fail...” at the Hawks’ offices three days later.
And, of course, again there is the glare of publicity and the hint of something suspicious.
It is a public relations exercise, a show of force, Hollywood show business, not lawful criminal investigation.
The suspect would be paraded before the mob, slinking to the interview amid flashing cameras and media questions. I
s this the modern equivalent of a public execution?
Heaven knows who and what lie behind this action against an honourable man, a man who has served our country loyally and professionally all his life.
It is monstrous and no one should fail to recognise it for the shabby thing it is. It is not a legitimate exercise of the powers of investigation. It is not a legitimate invitation to clear the air.
It is a smear. It is a charade, an affront to the rule of law. That is why Freedom Under Law says this is a persecution.
Kriegler, a retired Constitutional Court judge, chairs the nongovernmental organisation Freedom Under Law
Individuals are not above institutions
At the core of the political crisis that characterises the Jacob Zuma presidency is the rendering of state institutions as toothless.
With Zuma we have witnessed the rise of the individual above state institutions and how this individual breaks the law with impunity.
Individuals are protected and respected at the expense of state institutions.
Nowhere is this tendency demonstrated more clearly than in the case of the Public Protector, who, upon finding against Zuma, instructed him to pay back the undue benefits accrued from the building of his homestead at Nkandla, in KwaZulu-Natal.
Not only did Zuma and the ANC refuse, but they went on to undermine the Public Protector’s office, elevating the person Zuma at the expense of this chapter 9 institution.
Amid this crisis, Finance Minister Pravin Gordhan faces one of the worst witch-hunts that public servants have seen in post-apartheid South Africa.
It hits upon the value of the rand daily, causing it to fluctuate dangerously in an economy that continues to depend on our currency performing well on a global platform.
In an obvious battle to access Treasury, Zuma – driven by the Gupta brothers – is trying all he can to remove Gordhan and replace him with a “yes man or woman”.
This despite the hazards that such a move poses on the country’s economic stability.
And Zuma’s determination to ratify the nuclear deal before his term of office ends will have him stop at nothing – including having Gordhan arrested – to achieve his mission.
We all accept this is a witch-hunt. On many platforms we have expressed confidence in Gordhan’s innocence.
Again, we reiterate that he is innocent until proven otherwise.
However, in fighting for his innocence, the minister must not fall into the same trap and risk appearing as if he, too, is above state institutions.
This will only serve to deepen our political crisis rather than resolve it.
He may well have legal grounds to refuse to cooperate with the Hawks, particularly regarding the recent summons he defied.
But there are times when the legal force of your argument is divorced from the politics behind it.
What harm would Gordhan have suffered had he met the Hawks?
None, precisely because of his superior legal position.
By refusing to attend Thursday’s meeting, Gordhan has appeared as being special and above the institutions whose legitimacy we are all trying to restore.
He has appeared to insist on being treated differently when his former colleagues complied.
From my own experience, I knew that I did nothing wrong and that the state institutions were being used to silence and ultimately cast me into the shadows.
Yet I cooperated with all investigations by the SA Revenue Service and the Hawks.
I knew that in time, the truth would come to light.
I did the same with the ANC’s kangaroo court, the national disciplinary committee, even when I knew the outcome was predetermined.
I had to respect that institution, knowing that history would absolve me.
During all I went through, I maintained the political legitimacy of public institutions, even when I knew they were being misused to settle political scores.
This is the integrity we have a duty to defend and restore to our institutions.
Public institutions are intricately linked to the practice of the rule of law. In defending their integrity – even when they are misused against us – we, in turn, reinforce the idea of the rule of law.
We show that the law applies equally, regardless of one’s status.
We show that, regardless of who drives these institutions, they must be respected because individuals come and go, but institutions remain.
This political lesson was fractured by Gordhan’s refusal to meet the Hawks.
He should have gone, trusting that, in the end, our judiciary would present him with an objective, independent test.
As a result, Gordhan has opened up legitimate criticism that he deems himself untouchable.
He has given legitimacy to the assertions that white private capital is able to protect him even against the Hawks, as it has been said that they are the ones who appointed him as finance minister.
When then president Thabo Mbeki was recalled, he had legal grounds to refuse and see his term of office through.
Yet he did not. He later said he did so to show that individuals are not above institutions.
Gordhan must learn from the Bapedi idiom: “Sebiletšwa se a tšhoša”; when called, you must heed the call and show interest in why you had been called.
He must be seen to respect state institutions, always humbling himself to respond to their call.
That way his enemies cannot overcome him because in the end we remain not with Gordhan, but with institutions that must continue to function and serve society.
Malema is the leader of the Economic Freedom Fighters
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