The Hawk’s actions involving the Minister of Finance, Pravin Gordhan, sets red lights flickering and sends a clear message that what is happening to Gordhan, can happen to anyone, Adv. Anton Alberts, the FF Plus’ parliamentary spokesperson on Finance, says.
Adv. Alberts says the fight that is currently taking place between Gordhan and Treasury on the one side and Zuma and his team on the other side, as well as the economic implications of the struggle, further masks a very important implication regarding the manner in which the Hawks conduct their duties.
He said it boils down to the fact that what is currently happening to Gordhan can also to any individual, regardless of how prominent or private the person is.
“This conclusion is drawn from the fact that it appears that the Hawks does not have a real case against Gordhan, which confirms the suspicion that the Hawks are being used as an instrument of intimidation. If it can happen to a minister, it can happen to anybody, including persons of importance, such as whistle-blowers, and members, and public representatives of opposition parties.
“The Hawks have formulated three complaints against Gordhan in terms of the Public Finance Management Act of 1999, the National Strategic Intelligence Act of 1994, and the Prevention and Combating of Corrupt Activities Act of 2004.
“Regarding the Public Finance Management Act, one does not even have to look at the facts, as the Act does not set out any crimes in the sections to which the Hawks refer.
“It is a verified legal principle, known as the principle of legality, that a person cannot be charged with a crime which does not clearly exist in terms of common law or statutory law and where the elements of a crime are not properly defined.
“In this case, there is merely no crime in terms of which Gordhan can be charged and the Hawk’s complaint is arbitrary and therefore unconstitutionalHa. There are crimes in terms of Section 86 of the Act, but the Hawks did not make a case in terms of that Section of the Act.
“Regarding the National Strategic Intelligence Act, the facts again does not need to be looked at as no crimes are established by the Act and the legality principle therefore also prevents Gordhan from being legally charged.
“Any contravention of this Act is an offense. The complaint of the Hawks is, therefore, arbitrary, unconstitutional and an attempt to establish a crime that does not exist. With this, the Hawks are appropriating powers which are only vested with the legislative authority.
“In terms of the Prevention and Combating of Corrupt Activities Act specific crimes are established, and it is possible that the Act was possibly contravened. But the Hawks will have to prove that Gordhan’s actions meet the requirements of the elements of a crime as set out in the legislation.
“In this case, the Hawks will have to prove that Gordhan had received some or other benefit in an attempt to have moved him to give a severance package to an official, Ivan Pillay, to only later appoint him to the same position in the department.
“Thus far there is no proof that Gordhan had done this, and if it does exist, the Hawks have yet to reveal it.
“The same argument holds if the Hawks would to argue that Gordhan had organised the early retirement deal and re-appointment in exchange for certain benefits that Pillay would have provided. The Hawks have not yet declared that they have proof that Pillay had provided or promised any such benefits.
“Against this background, it appears that the Hawks wanted to meet with Gordhan to force possible confessions from him to strengthen their weak case on the one hand and on the other hand, to intimidate him and derail him so that he would eventually resign as minister of finance.
“The danger, of course, lies in that the Hawks could in future use the same tactics of false complaints to bully any important person. The Constitution is there particularly to prevent such actions, but it clearly does not stop Zuma’s henchmen,” Adv. Alberts said.
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