[OPINION] A shameful day for South Africa

It was what one might call embarrassing legal gymnastics. National Prosecuting Authority (NPA) head Shaun Abrahams twisted and turned as he slowly came to the obvious conclusion. The criminal charges against South African Revenue Service (Sars) officials Oupa Magashula and Ivan Pillay were going to be withdrawn and Finance Minister Pravin Gordhan was off the hook too.

It was a truly shameful performance on a shameful day for South Africa and its independent, democratic institutions. Abrahams had initially announced the charges to much fanfare, wiping billions off the stock exchange, only to change his mind a few weeks later.

Reckless does not even begin to describe the action. From the very start it was clear that the charges were without foundation, yet Abrahams seemed undeterred. Until yesterday, that is.

What was probably most revealing about the long-winded and painful press conference was that Abrahams sought to distance himself from the initial decision to charge the trio.

On the most generous interpretation then, Abrahams himself held the initial media briefing without applying his mind. This seems either hopelessly incompetent or a clear sign that he too has been ‘captured’ and was doing his master’s bidding.

How else does one explain the absurd about-turn yesterday?

Since the charges were brought against Gordhan in particular, there has been mounting civil society pressure for them to be dropped. Both the Helen Suzman Foundation and Freedom Under Law challenged the matter legally, while other organisations and prominent individuals were readying themselves to accompany Gordhan to court on Wednesday.

One can only conclude that President Zuma wanted to avoid such a public show of support and so may well have leaned on Abrahams to drop the charges. The idea that Zuma has a ‘hands-off’ approach in this matter, when one of the most senior members of his Cabinet is being charged, is simply not plausible. Added to that, the fact that applications for interdicts are flying around at the rate of knots in a bid to halt the release of the former Public Protector’s state capture report, things become clearer.

But, in a democracy like ours with a free press and the free flow of information, leaks are also inevitable. We are now hearing that Co-operative Governance Minister Des Van Rooyen may have visited the Gupta family for seven days in a row before his short-lived appointment as finance minister.

Things are all starting to add up and at the centre of the storm stands our president himself: captured and compromised.

The ANC, for its part, has responded to the Abrahams decision and said it is concerned about the independence of the NPA. As they should be, but which part of the divided ANC was speaking when Zizi Kodwa made that statement, one had to wonder?

Abrahams will have done Zuma’s bidding, thrown his colleagues like Torie Pretorius (the NPA’s special acting director) under the proverbial bus and hoped for the best.

Yet, when asked whether he would resign, he seemed adamant that he would not. South Africa, of course, is no country for resignations. Were that the case, Zuma would have resigned years ago or been recalled.
So, what can legally be done now? In terms of s 12 (6) of the National Prosecuting Authority Act 32 of 1998, the president himself is allowed to suspend the NDPP provisionally, pending an inquiry. This could be done for reasons of ‘misconduct, ill health, incapacity or if they are no longer a ‘fit and proper person’. The matter is then referred to Parliament in accordance with s 12 (6)(c) and (d). Alternatively, the president can remove the NDPP in terms of s12 (7) of the NPA Act that requires both Houses of Parliament to address the president regarding which grounds in s 12 (6) would apply. s8 allows the NDPP to vacate his/her office voluntarily for reasons of ‘ill-health’ or ‘any other reason the President deems fit’.

So here we have an opportunity for Parliament to resolve that Abrahams’s conduct renders him unfit for the position or, the president himself may wish to come to that conclusion.

There may also be an opportunity for Abrahams himself to be pricked by his conscience and resign of his own volition. That seems unlikely despite the incalculable damage he has wrought both to the NPA as an institution and public trust in democratic institutions. His position is untenable to say the very least.

The Constitution also gives the minister of justice ‘final responsibility’ over the NPA in terms of 179 (6) so rightfully Minister Masuthu should himself be pressured to deal with the matter too.

Given the divisions within the ANC, it is hard to see Parliament being able to come to any resolution regarding Abrahams. And expecting Zuma to act would be like waiting for Godot. He is entirely vested in an NPA head who is pliable specifically given the ‘spy tapes’ filibustering he is currently involved in.

So, more and more intrigue will no doubt be laid bare in the coming weeks as the ANC sinks further into ignominy and scandal. Civil society pressure will mount and Zuma will remain hiding at Brics meetings or his latest bilateral meeting in Zimbabwe. His interest in governing is now peripheral to managing the fall-out of his toxic relationship with the Guptas. Of course, Abrahams left the door open to charges against Gordhan regarding the Sars ‘rogue unit’.
Could this be a further throw of the dice for Zuma who has now over-played his hand twice as regards his desperate attempts to capture National Treasury?

The notion of the all-powerful Zuma is a fallacious one. He is caught in the crosshairs of ANC paralysis as much as anyone else.

It will be a fight to the bitter end, with comrade turning on comrade. Quite what will be left of the ANC by the time it stumbles to its conference in 2017 is anyone’s guess.

Judith February is a governance specialist, columnist and lawyer. She was previously executive director of the HSRC’s Democracy and Governance unit and also head of Idasa’s South African Governance programme for 12 years. Follow her on Twitter: @judith_february