Over the last 150 days we have learned much about the power of the habitual in post-millennial, post-apartheid South Africa. We have heard it in the grumbling, cavilling, quarrelling and grousing about the logic (or lack of) of government decrees. We have also seen it in the defiance of logic among the many bourgeois folks who mistook their entitlement for rights, whether to go running, do yoga on the beach, surf, get takeaway coffees, or to purchase items subjected to restricted trade… We saw it in the contradictory messages relayed by official government channels, in the conflict between some experts advising government, between government officials and such experts, and in the ways in which opposition parties contradicted themselves as they opposed government proclamations.

17 May 2016

Is there any legal basis for investigating Minister Pravin Gordhan?

Many South Africans who support the faction that wishes to get rid of Finance Minister Pravin Gordhan argue that there is nothing wrong with the Hawks investigating and arresting him because “no one is above the law”. Gordhan, they argue, will not be convicted unless he is guilty of a crime. This argument would be tenable if the investigation related to the commissioning of an identifiable criminal offence. The problem is that the publicly available information suggests that it does not.

It would be unlawful for the Hawks to investigate an individual for having a sparkling personality. This is because (as Idols judge Somizi Mhlongo might be relieved to hear) it is not a criminal offence to have a sparkling personality.

If the Hawks were to investigate Somizi Mhlongo with the help of the NPA merely for having a sparkling personality they would be abusing their power in order to intimidate or persecute him in an unlawful manner. It would constitute a flagrant abuse of the criminal justice system by the Hawks and the NPA.

As the Supreme Court of Appeal (SCA) stated in its judgment of National Director of Public Prosecutions v Zuma, a prosecution will be wrongful if reasonable and probable grounds for prosecuting a suspect are absent. This means for a prosecution to be lawful there needs to be prima facie evidence of the breach of one or more criminal law provisions. The same holds true for a criminal investigation by the Hawks. Investigating a person for doing something that is not a criminal offence would constitute a flagrant abuse of power.

When judging whether the investigation of Pravin Gordhan by the Hawks and the NPA is lawful or whether this amounts to a wrongful persecution of Gordhan because of a political power struggle, it is therefore rather important to establish the possible legal grounds for the investigation.

This appears almost impossible to do. Neither the Hawks nor the National Director of Public Prosecutions (NDPP), Shaun Abrahams, has pointed to any criminal provisions which might justify the investigation against the Minister of Finance. This is unfortunate as it has created a strong suspicion – rightly or wrongly – that powerful individuals are using the Hawks and the NPA to try and get rid of the Minister of Finance because he happens to hold the keys to the fiscus.

The NDPP confirmed on Sunday that the NPA had received a docket from the Hawks regarding the possible arrest and prosecution of the Minister of Finance and other former members of the South African Revenue Service (SARS). However, Abrahams refused to say what charges were being investigated. He did indicate that the docket had been referred back to the Hawks investigators “with guidance”, which suggests the NPA asked the Hawks to look for more proof that a crime was indeed committed.

But what could this alleged criminal offence possibly be?

The Sunday Times reported on Sunday that Minister Gordhan is being investigated for “espionage”. However, this claim is a legal nonsense as there is no such crime as “espionage” in South Africa law. Being investigated by a priority crimes unit for espionage would be like being investigated for buying milk at the Spar. Like buying milk at the Spar “espionage” is not a criminal offence.

But perhaps the Sunday Times (or those within the Hawks or the NPA who might have leaked the information to the newspaper) were really referring to various criminal offences created by the draconian apartheid era Protection of Information Act, 84 of 1982. This Act will eventually be replaced by the Protection of State Information Bill (the so called Secrecy Bill) once the latter Bill is signed into law by the President. (It is unclear why the President has not yet signed this Bill into law and I refrain here from speculating whether this failure relates the the current upheaval around the Minister of Finance.)

But at present, the apartheid era Protection of Information Act is the law that regulates secrecy of government documents and is the law that would be applied to crimes relating to the unlawful gathering and dissemination of confidential government documents.

Section 3 of the Act prohibits any person from disclosing secret documents to a foreign state or its agents. Secret documents are documents related in some way to defence matters. So unless Minister Gordhan leaked defence secrets to foreign governments (which, let’s face it, seems laughable) section 3 is not in issue here.

Section 4 of the Protection of State Information Act is probably more likely to be applicable to the case. However, the section is so broad that it almost certainly constitutes an unjustifiable and thus unconstitutional limitation on the right to freedom of expression and is almost certainly invalid.

The section prohibits a person who hold any documents entrusted in confidence to him by any person holding office under the Government from disclosing that document to a person other than a person to whom he is authorised to disclose it. In other words, in terms of this provision it is a criminal offence to to hand any government document – no matter what its content – to somebody outside government as long as the document was given to you “in confidence”.

Section 4 is typical of the kind of authoritarian legislation passed in the time of President PW Botha’s regime. In fact the entire Act is steeped in paranoia and secrecy and cannot possibly be squared with an open and transparent democratic state.

Section 4 of the Act would not stand up in court because it criminalises the disclosure of even the most harmless and innocuous information. It also prohibits the leaking of information about corruption and abuse of power as long as the document was given “in confidence” – even when this has absolutely nothing to do with the security of the state.

Moreover, section 4 does not contain a public interest exception, which means that in its current format it could be used for the most nefarious purposes – to hide corruption, maladministration, abuse of power or criminal acts. The Act also contains several reverse onus provisions which in other criminal law contexts the Constitutional Court had declared unconstitutional. I am happy to place a sizeable bet with anyone that section 4 will never pass constitutional muster. (Any takers?)

This view is not controversial. In fact, in order to justify the adoption of the new Secrecy Bill the executive pointed out that the Protection of State Information Act contains unconstitutional and authoritarian provisions. It would therefore be surprising if the Hawks and the NPA relied on this obviously unconstitutional and draconian provision to justify their investigation against Minister Gordhan. It would also cast serious doubt on the commitment of the Hawks and the NPA to South Africa’s constitutional democracy.

Another possible law that the Hawks and the NPA may rely on to justify the investigation against Minister Gordhan is the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002. Section 49 of this Act prohibits any person from intentionally intercepting or attempting to intercept or authorising the interception of any communication while it is being transmitted. This section deals with both phone conversations and personal conversations.

This prohibition does not apply to the interception of any communication by somebody who is party to a communication. In other words, you are permitted to record (or “intercept”) a conversation you have with another person (either on the phone or in person). The Act also allows several other exceptions for law enforcement officers and the like and for businesses to intercept communications in certain circumscribed instances.

In order for there to be any legal basis to investigate Minister Gordhan for breaching this provision, there would need to be some evidence that the Minister authorised SARS officials to intercept the communications of others without having had permission to do so.

The Sunday Times (reporting allegations leaked to it by an unknown party or parties) had previously claimed that the investigative unit set up by SARS managed a brothel and eavesdropped on politicians and other taxpayers in contravention of this law. However, earlier this year the Sunday Times retracted many of the allegations it had published as some of the allegations were clearly false.

Moreover the former head of the SARS investigative unit, Johann van Loggerenberg, had also denied allegations that the SARS unit had illegally acquired equipment and assets, including eavesdropping equipment, to spy on taxpayers, stating that:

As cost centre manager, I would have been aware of acquisitions of any equipment of any kind. None of these units… acquired any specialised or listed equipment that could be used for ‘intelligence gathering’. They also did not use such equipment to spy on persons.

This denial is surprisingly emphatic and detailed. Usually potential criminal suspects do not deny allegations of criminal wrongdoing in detail for fear of being caught in a lie when testifying in their own defence. What renders the denial even more credible is that we know that at least part of the denial – that the SARS investigative unit was illegally established – is definitely true.

As I have explained before, this is because the National Strategic Intelligence Act 39 of 1994 (which was originally invoked by those pointing fingers at SARS officials and Gordhan) does not prohibit a body like SARS from establishing an investigative unit and gathering intelligence.

Nor does it prohibit SARS from gathering intelligence covertly. The Act does state that the covert gathering of intelligence relating to a potential threat to the national security and stability of South Africa would be unlawful. Spying on taxpayers could not possibly be equated with gathering intelligence about potential threats to national security.

In any event, the Act does not create any criminal offences so even if the SARS unit did gather intelligence relating to potential threats to national security it could not possibly have been a criminal offence.

The Act does allow the Minister to create criminal offences through the issuing of regulations but this was never done. If the Hawks and the NPA are therefore investigating breaches of the National Strategic Intelligence Act, they are abusing their power and investigating something that is not a criminal offence. It would, in fact, be the equivalent of investigating somebody for the “crime” of having a sparkling personality.

I have been unable to find any other legislation which may be relied on to justify the criminal investigation against the Minister of Finance. Unless the Hawks and the NPA take us into their confidence about the nature of the alleged criminal offences being investigated, I for one will remain in the dark about the legal justification for the investigation.