Myths and Clichés of Prosecution

South African political life has become burdened by clichés which render actual thought unnecessary while simultaneously promoting the desired image of the person using them. Referring to the ‘poorest of the poor’, for example, makes it clear that one is driven by the deepest concern about poverty – by real, industrial-weight, export quality, heavy duty compassion and not just by mere ordinary, common or garden, off-the-shelf pity. Criminal law has become graced by the largest crop of clichés.

Snarl ‘zero tolerance!’ and your anger and indignation are clear. Add ‘the full might of the law’, and your audience knows that you really do mean what you say – provided of course that zero tolerance does not mean that you in particular may ever be faced with the full might of the law if you use your cell-phone while driving. Protect yourself by claiming that you are ‘innocent until proven guilty’ (never ‘proved’ – that’s too informal and trivialises matters) and you’re home and dry.

Recently, in the context of incidents involving the Minister of Finance Pravin Gordhan, two clichés in particular have been much in evidence – ‘no-one is above the law’, and ‘the law must take its course’. Like all clichés, their banality skulks behind the solemn air of confidence with which they are stated; the message is that, their truth being self-evident, those who insist that Gordhan’s refusal to play the game to the Hawks’ rules are challenging the very foundations of the state. The cliché-chanters, self-righteously and passionately defending their ignorance, thus relieve themselves of the tiresome burden of critical thought: what law does Pravin Gordhan seem to think that he is ‘above’? And what course should the law be taking that he is frustrating?

All that we know is what the Press has published. We know that the Hawks demanded that Pravin Gordhan should answer 27 questions about certain matters relating to his time as head of the South African Revenue Service; we know that this request was made almost on the eve of the day Pravin Gordhan had to deliver his annual Budget address in Parliament on 24 February; and we know that the Hawks demanded answers by 2 March. He was allowed roughly one week to deal with the request.

We know that he answered these questions. He did so even though he was under no obligation to do so, for there is a detail that those who rely on clichés instead of thought might like to reflect on: the Constitution has put an end to the days when one could be detained until the police are satisfied that they have provided all useful pieces of information. Everyone has a moral and civic duty to assist the police, but there is no longer any requirement in South African law that one has to answer their questions.

Not only did Pravin Gordhan answer the questions, as his lawyers have pointed out, but he offered to provide any further assistance they might require. What is more, he had been told by the Hawks on 20 May, 2016 that he is not even a suspect in the matters that the Hawks were investigating. This is hardly surprising, as Pierre de Vos and Cathleen Powell (amongst other prominent lawyers) have explained in clear and simple language. Professor de Vos explains why it is that – ‘On the version of the facts and the law provided to the Minister of Finance by the Hawks themselves, the Minister did not commit any criminal offence’. Cathleen Powell reaches a similar conclusion – that ‘[o]n the Hawk’s own papers, there is no crime to investigate’. Those who rely on clichés, of course, will be indifferent to such matters as the actual law.

Thereafter, on 22 August, the Hawks summoned Gordhan to their offices to make a ‘warning statement’ on the matters disclosed in the 27 questions. They had no authority in law to do this, and there is no compulsion on anyone to make such a statement. In the briefest summary possible, a warning statement deals with the fundamental rights set out in sec. 35 of the Bill of Rights. This section applies specifically but not exclusively to everyone who has been arrested, detained, and accused of offences; in practice, the police may ask anyone they wish to question to make and sign such a statement.

A warning statement thus records that before being questioned one was first cautioned and told of the right to remain silent and not answer questions; and also that one cannot be compelled to make confessions or admissions that could be used in evidence against one. It also records that one was warned of the consequences that may follow by remaining silent and thus not giving an explanation about the matters being investigated.

In the case of anyone who has been arrested, detained, and accused of an offence, more rights are set out in sec. 35. These include the right to be informed of the reason for being detained. Anyone with long memories will recall the so-called ‘Judges’ Rules’. Now, the protections of the Judges’ Rules are enshrined and strengthened in the Constitution .

Pravin Gordhan was neither arrested nor detained, nor accused of any offences – in fact, he is not even a suspect in any. We know that this is so, because the Hawks themselves said so. So what would warning statement relate to, and in what way is he ‘above the law’ by refusing to put his name to a document which is valueless as he has already answered the questions put to him?

Reviewing the law, Dr Powell says of this demand by the Hawks: ‘So what does Gordhan achieve by cooperating with this unlawful demand? It may serve to create the impression that the Hawks have a right to summon him (or anyone else), which they do not. It cannot serve to establish his innocence if the Hawks are not interested in whether he is innocent or not. And, if the intention of the Hawks is to harass, discredit or wear him down, it gives them another chance to do so’.

Only Pravin Gordhan and his lawyers know the reasons they gave for advising him to decline the Hawk’s request to sign a warning statement, but one comes readily to mind.

When all else fails, one could choose between the cockup and conspiracy theories of incomprehensible official behaviour. However, there is in fact a third choice, and it seems to fit the facts. The clue is given by a report that the head of the Hawks, Berning Ntlemeza, was ‘furious’ because Pravin Gordhan refused to sign a warning statement. Why, one wonders, did he react thus?

The answer lies in the fact that the warnings are for the benefit of those whom the police wish to question, but warning statements are for the benefit of police doing the questioning – to be evidence that answers were given freely and voluntarily. It follows that to make any sense of sec. 35 of the Bill of Rights, the police must first ensure that those whom they wish to question have been informed about their rights and understand them before they can be questioned. What must have enraged Berning Ntlemeza is the fact that Pravin Gordhan was given no such warning before being questioned, and that he was thus well-advised not to make a warning statement (which he was not obliged to make anyway).

Was there a cockup or a conspiracy?

Neither. It was a cocked-up conspiracy.

General Berning Ntlemeza might have hoped to get away with it, but in the event what happened must be galling. It leaves him facing the public with a thick layer of egg on his face and down his smart uniform, for he and his Hawks ensured that the world at large knew of their dealings with Pravin Gordhan, and he and his Hawks messed it all up. And Number One was doubtless unlikely to be pleased.

Pravin Gordhan was under the maximum possible pressure of his ministerial office and preparing the annual Budget speech, and almost on the eve thereof Ntlemeza delivered his questionnaire. He demanded answers, to be provided within roughly one week, to a series of complex questions relating to matters which took place seven years previously concerning Pravin Gordhan’s tenure as Commissioner of the South African Revenue Service, and which he would need time to research.

It appears that the intention is isolate Pravin Gordhan and to destroy his credibility by depicting him as someone who refuses to abide by the law as defined by clichés. Cathleen Powell observes: ‘There is no evidence to support the narrative that the Hawks are, in good faith, investigating crimes which the minister may have committed’.

Ntlemeza’s conduct has been unlawful, bullying, aggressive and minatory throughout his dealings with Pravin Gordhan. His qualifications, by what now appear to be Zuma’s standards, make him the right man for the job for he has been described by a High Court judge as biased, dishonest, lacking integrity and honour, and a perjurer. Since his appointment to the Hawks, his career has been – in a word – sordid.

It sure takes a tough, no-nonsense, cop to nail a Minister of Finance, and President Zuma evidently hopes to be served well by Ntlemeza’s experience gained while working for the apartheid special branch. It is immaterial whether Nztlemeza was personally involved in the bloody violence of the apartheid police; he was a willing member of the special branch, and in order to remain a member and serve it he had to imbibe its culture and identify himself with its work. Its victims were the members of the African National Congress, and the organisation itself. Those he hunted now form the government of the Republic; truly, he brings a whole new meaning to the concept of ‘comrade’.

It is a grim comment on the tragic depths to which Zuma has dragged South Africa that such a person is regarded as suitable to lead investigations into priority crimes. If his conduct is good enough for a senior commander, what price the integrity and morale lower in the ranks of the police? Our criminal justice system is struggling for legitimacy, and we can do without such a person as a role model.

The Hawks’ task is to prevent, combat and investigate national priority offences. We learn from the press that the dossier has in the normal course been forwarded to the National Prosecuting Authority for a decision on whether or not to prosecute Pravin Gordhan.

Captain Kirk on the starship ‘Enterprise’ set forth into outer darkness with star charts and Mr Spock for guidance, and a famous split infinitive for inspiration. In imitation, the cliché-chanters wish South Africa to boldly go where no law has gone before ..... but why? Is Pravin Gordhan to be prosecuted....for what?

Ntlemeza has scripted a real-life South African version of the bleak nightmare in Kafka’s grim novel ‘The Trial’, where guilt required neither a crime, nor evidence, nor law to be disclosed to anyone.

But this is not a fiction and our story must be ended by the NPA immediately refusing to prosecute, telling the world of this decision, and allowing Pravin Gordhan to get on with a job he’s damn good at.