Cape Town - The lawyers for Finance Minister Pravin Gordhan, Gildenhuys Malatji Inc, on Tuesday questioned the motive of the Hawks and the National Prosecuting Authority for serving a summons for Gordhan to answer to fraud charges at his home.
Gordhan was formally summoned by the National Prosecuting Authority (NPA) for fraud, related to the early retirement of Ivan Pillay, the former deputy commissioner of the South African Revenue Service (Sars). Summonses were also served on former Sars commissioner Oupa Magashula and former deputy commissioner Ivan Pillay.
Gildenhuys Malatji said they would have expected the Hawks to interact with them directly.
"We had repeatedly requested that the NDPP afford Minister Gordhan the opportunity to make written and/or oral representations before making a decision on whether to prosecute or not."
NPA boss Adv Shaun Abrahams, in particular, advised the lawyers in August that he will only consider the request to make representations to him on whether to initiate a prosecution or not once the investigation has been concluded and a docket has been submitted to the NPA, Gildenhuys Malatji said in a statement.
"It is surprising that we have received a letter dated 4 October 2016, but only sent to our office this morning (11 Oct) advising that Minister Gordhan is an accused person."
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Sketching a timeline of sorts, Gildenhuys Malatji said they were initially advised in May 2016 that Gordhan is not a suspect, yet in August 2016, Gordhan was advised that he should give a warning statement which by its very nature meant that he is considered to be a suspect.
"At the time it was contemplated by the Hawks that Gordhan contravened the provisions of Sections 1, 34 and 81(2) of the Public Finance Management Act, 1 of 1999, that he was guilty of corruption in terms of Section 3, 4 and/or 10 of the Prevention of Corrupt Activities Act, 12 of 2004 as well as Section 3 of the National Strategic Intelligence Act, 39 of 1994.
"These related to the establishment of the Sars investigative unit and the early retirement of Pillay."
Gildenhuys Malatji said the latest charges against Gordhan are charges of fraud, alternatively theft insofar as it relates to Pillay’s early retirement.
"Fraud is defined as 'the unlawful and intentional making of a misrepresentation which causes actual prejudice or which is potentially prejudicial to another'. In order to succeed with proving the crime of fraud, the State must establish the elements of the crime which are defined as first, a misrepresentation, second, prejudice or potential prejudice to another, third, unlawfulness and lastly an intention to so prejudice," the lawyers said.
Gordhan is taking counsel on all available legal avenues to bring this matter to an expedited end, said Gildenhuys Malatji.
The Treasury the Hawks' move to summons Gordhan appears to maximise the damage inflicted on the economic well-being of South Africans.
"It is most unfortunate that the Hawks have, once again, chosen to initiate legal proceedings at a moment that appears calculated to maximise the damage inflicted on the economic well- being of South Africans and essential processes of government," it said in a statement on Tuesday.
Treasury added that Gordhan is ready to subject himself to a legitimate process of the law to bring this matter to rest in the interest of the country as soon as possible.
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