06/11/2017 06:08 SAST | Updated 06/11/2017 12:13 SAST

Here's Why Shaun Abrahams Is Unfit To Hold Office

If the Guptas, the Zumas, and those whose names appear in the GuptaLeaks skip the country to Dubai, Abrahams should face prosecution for obstruction of justice.

Before the Economic Freedom Fighters (EFF) could call for the Guptas to leave our country, I had made that call in an opinion piece, "The time has come to send the Gupta family packing". However, the news outlet took it offline the following day. This, to me, amounted to a sort of censorship. Hence, I have included it in my book "The Thoughts of an Ordinary Citizen" as an addendum, to let the readers decide whether it warranted censorship.

Fast forward, and I do not support the call anymore –– not until the Guptas have cleared their names on innumerable charges laid against them. While the evidence contained in the Gupta emails exposé, popularly known as the GuptaLeaks, may be inadmissible in a court of law due to their disputed acquisition and authenticity, Ajay Gupta, Duduzane Zuma, and Fana Hlongwane should by now at least have appeared in the court of law to face a charge of bribery.

Following his revelation that Ajay Gupta, in the presence of Duduzane Zuma and Hlongwane, offered him a whopping R6-million bribe to supersede Nhlanhla Nene as finance minister, former deputy minister of Finance Mcebisi Jonas deposed an affidavit to that effect. In other words, a prima facie case of bribery exists for NPA head Shaun Abrahams to prosecute the trio. Duduzane and Hlongwane are accomplices.

Perhaps it would have emerged in the court of law whether Ajay, or any of the Gupta brothers, in the presence of this duo or someone else, made the same offer, if not more or less, to David van Rooyen, who succeeded Nene as finance minister. This seems even more probable, given that a night before his startling appointment as finance minister, he was in infamous Saxonwold, drinking tea with the Guptas.

At the same Saxonwold home, the Guptas offered former ANC MP Vytjie Mentor the position of public enterprise minister, on the condition that she would cancel a South African Airways route to their homeland India and give it to them, while President Jacob Zuma was sitting in another room. There is more to Van Rooyen's appointment as finance minister than meets the eye.

Most importantly, it would have emerged in the court of law whether the trio is a flight risk or not. The court would have made an appropriate ruling thereon.

If the Guptas, the Zumas, and those whose names appear in the GuptaLeaks skip the country to Dubai, Abrahams should face prosecution for obstruction of justice, which is tantamount to treason.

By selling the ANN7 and "The New Age"(TNA) to their chief lackey, Mzwanele Manyi (if indeed they owned them in the first place), and Tegeta to Charles King SA, the Guptas and Zuma seem to be destined for Dubai in the United Arab Emirates (UAE), where, as revealed in the GuptaLeaks, they have acquired luxurious residences.

Once in Dubai, it would be very difficult to extradite them to South Africa to clear their names. South Africa and the UAE have not signed the extradition and the Mutual Legal Assistance (MLA) treaties into law. This would frustrate a commission of inquiry into state capture, if not render it futile.

If the Guptas, the Zumas, and those whose names appear in the GuptaLeaks skip the country to Dubai, Abrahams should face prosecution for obstruction of justice, which is tantamount to treason. In fact, the General Council of the Bar (GCB) should strike him off the roll of advocates for this obstruction of justice.

How he dealt with trumped-up charges of fraud against former finance minister Pravin Gordhan, former SARS commissioner Oupa Magashule, and deputy former SARS commissioner Ivan Pillay, did not necessarily warrant the EFF lodging a complaint with the GCB to strike him off the roll, but his failure to prosecute the trio on the charge of bribery and obstruction of justice on state capture do. The decision to prosecute the trio on the trumped-up charges of fraud was also vested chiefly in him.

Announcing this decision, Abrahams was at pains to convince South Africans that the days of disrespecting the NPA are gone. Yet succumbing to public pressure a few weeks later, he dropped the charges against the trio, thus proving his unfitness to hold office.

Consequently, Zuma wrote to Abrahams demanding he explain why the president should not suspend him as NPA head and institute an inquiry into his fitness to hold office. However, there is nothing to write home about in this matter thus far. It is understandable, though, as his disinclination to prosecute Zuma on 783 counts of corruption, fraud, money laundering, racketeering and tax evasion benefits the president in the main. Hence, his appointment as NPA head raises eyebrows on two accounts.

For Zuma to become South African president, Mbeki and Pikoli had to go.

First, consider what former NPA head Vusi Pikoli says in the book "My Second Initiation", co-authored with renowned South African journalist Mandy Wiener. Pikoli says that while he was on suspension, Zuma's backers, including a lawyer and senior ANC leaders in KwaZulu-Natal whom he does not mention by name, paid him a visit to relay a message that "the man" wanted to see him.

In September 2007, citing an "irretrievable break down [sic] in the working relationship" between him and the Justice Minister, Brigitte Mabandla, and Pikoli's decision to grant convicted drug dealer Glen Agliotti and other members of his syndicate immunities so that they could become state witnesses in a case of corruption and fraud against former national police commissioner Jackie Selebi, former President Thabo Mbeki suspended Pikoli as NPA head, and instituted an inquiry into his fitness to hold office, chaired by former parliamentary speaker Frene Ginwala.

Having refused to go and meet Zuma, Pikoli says his backers wanted to know whether he would reinstate the charges against "the man" if he were to be kept as NPA head, despite Ginwala's finding on his fitness to hold office. No wonder caretaker President Kgalema Motlanthe, who was part of an ANC internal task team to advise on Zuma's case, removed him as NPA head and the ANC in Parliament rubberstamped his removal, despite Ginwala having declared him fit to hold office.

For Zuma to become South African president, Mbeki and Pikoli had to go. It would have been difficult for then-acting NPA head Mokotedi Mpshe, whom Pikoli says "was put under political pressure", to drop the charges against Zuma with Mbeki at the helm.

Suspending Pikoli as NPA head, Mbeki cited clause 179 (6) of the Constitution, according to which, he said, Mabandla "exercised final responsibility for" the NPA. Mabandla acted on behalf of the government, which, as Mbeki drew to Pikoli's attention, "must and does have an interest in ensuring that the prosecuting authority services the public interest".

Second, Abrahams' predecessor, Mxolisi Nxasana, said Zuma removed him amid the rumours that Nxasana would reinstate the charges against him. In other words, Abrahams may lose his job if he reinstates the charges against Zuma.

Inescapably, the question comes to mind whether Zuma's backers had also paid both Mpshe and Abrahams a visit, to cajole them into dropping the charges and not pursuing the case against "the man" respectively. Disappointingly, Pikoli stops short of mentioning who put Mpshe, who plagiarised an irrelevant Hong Kong-based judgment, under political pressure to drop the charges against Zuma.

The Judicial Service Commission (JSC) should investigate Mpshe, whose decision to drop the charges against Zuma the courts have declared irrational, for judicial misconduct. Admittedly, I'm on a wild-goose chase in this regard, as the JSC is, in colloquial terms, in the same WhatsApp group with the NPA and the Hawks. Nearly a decade later, the JSC has yet to investigate a case of judicial misconduct against Cape Town Judge President John Hlophe, not to mention that of Judge Mkola Motata for drunk driving.

Abrahams cannot drop the charges against Zuma based on a disputed KPMG audit report. The onus would lie with Zuma's lawyers to discredit the report in the court of law. He has no choice but to set a date for Zuma's day in court.

Molifi Tshabalala is an independent political analyst.