EMBATTLED Finance Minister Pravin Gordhan has been charged with fraud for forcing the South African Revenue Service (SARS) to bend the rules and give his struggle pal, Ivan Pillay, a R1.2 million retirement deal in August 2010.
Gordhan, a former SARS commissioner, is also being investigated for his role in the tax agency’s rogue unit which allegedly spied on taxpayers and installed bugging equipment at the National Prosecuting Authority (NPA) headquarters at Silverton, Pretoria, in 2007.
Former SARS commissioner Oupa Magashula and Pillay, SARS’s former Deputy Commissioner, were also charged with fraud as well as the contravention of the Public Finance Management Act (PFMA).
NPA head Shaun Abrahams announced yesterday that Gordhan has been summoned to appear in court on November 2, a move Unisa legal and political expert Prof Shadrack Gutto said was “valid” in law and upheld the principle of equality before the law.
The NPA’s action was a sign of “a little light in the tunnel”, he added.
“The National Prosecuting Authority is right, correct in law and is following the latter and the spirit of the law. And if they have a case, it will be they will prepare it before the court,” Gutto said last night. “It cannot be negotiated out of the court, and from that point of view, I think the matter ought to go to court so that we know where the truth is and the people will decide on that, based on evidence and information presented in court.”
He added: “From that point of view, I think the NPA is demonstrating in a very sensitive area that it can decide in decisions without fear, favour or prejudice as required by the constitution and the National Prosecuting Authority Act or the legislation.”
Gutto said that’s where the country was at the moment.
He said he was not surprised by Gordhan’s reaction to the NPA’s decision as it was a “counter action by those who are affected”.
“But they have to understand that building a constitutional democracy, which believes in the rule of law, which gives confidence to everybody, the citizens, investors and so on, business people, is the credibility of the justice system,” Gutto added.
However, Gutto said, the question that arose was whether the NPA would do the same about pending cases such as President Jacob Zuma’s spy tapes one which led to him being let off the hook despite the recordings not being tested in court.
This came after Gordhan questioned the NPA’s decision to charge him, as well as the timing and the motive thereof. He has repeatedly argued that the Hawks were being used to settle political scores, sabotaging the country’s economy in the process.
“What is it about this country and some in this country who choose these times to do these things?” asked Gordhan, who questioned why the NPA charged him 15 days before he delivered his Medium Term Budget.
Earlier, Abrahams had announced the NPA’s decision to press criminal charges against Gordhan, Magashula and Pillay.
The seemingly final stand-off between Gordhan and the NPA has been long in coming. Last month, Magashula, Pillay and another Sars former employee Johann van Loggerenberg presented themselves to the NPA’s Pretoria office to provide warning statements in relation to the running of the so-called rogue unit.
Gordhan, who had been ordered to do the same, defiantly refused, citing legal advice for his nonappearance. Pillay, Van Loggerenberg and Gordhan have repeatedly referred to a toxic political plot to destroy them.
The news of The NPA’s action against Gordhan, had swift reaction in the market place with the rand falling by four percent to R14.48 against the US dollar.
The DA, EFF, SACP, ANC chief whip Jackson Mthembu and Gauteng premier David Makhura have thrown their weight behind Gordhan.
They said the fraud charges would harm the country’s economic prospects. “Zuma is fighting back because of evidence presented by treasury to Public Protector on state capture. We support #Pravin and not criminals,” Malema said.
The charges came two years after it emerged that Gordhan had allegedly approved Pillay’s employee-initiated early retirement with full benefits and immediately instructed SARS to rehire him on a three-year contract.
Internal memos indicated the Pillay was retained his “critical skills, experience and leadership”, although he had no formal academic qualifications.
Pillay’s contract was later extended twice – most recently in March 2014 – just before Gordhan was moved from finance minister to head up the local government ministry.
According to government rules, officials who took pension early for personal reasons have their benefits slashed unless they paid a penalty.
The memos, signed by Gordhan and Magashula, showed that SARS paid Pillay’s R1.2 million penalty.
If SARS had not paid the penalty, Pillay’s monthly pension of R53 303 would have been reduced by R4 740 and his lump-sum pay out of R2.36 million reduced to R2.12-million.
According to the memos, Pillay planned to retire at the age of 56 for “personal reasons” after spending a decade with SARS. Gordhan and Magashula signed off on Pillay’s deal in a memo dated August 12, 2010.
Magashula has previously said that “I was instructed by Pravin to give Ivan a contract.” It is widely understood that Gordhan and Pillay have enjoyed a close personal relationship since their struggle days.
Retired Constitutional Court Judge Zak Yacoob recently confirmed that he, Gordhan and Pillay had a close relationship formed during their exile days. “I know Pillay also from the underground of the ANC. And I don’t know him as well as I know the minister. He’s not as a good friend of mine as he is of the minister. But I get on very well with him,” Yacoob said.
Gutto said that since the NPA has now nailed its colours to the mast, Gordhan had a choice to either voluntarily step aside pending the outcome of the criminal case or face the possibility of being forced out by Zuma.
“We cannot dictate on the process, but there is a choice for the minister to either step aside, or day, while this case is on, I should step aside so that it should not be seen as if the state is manipulating or trying to put pressure on the National Prosecuting Authority,” Gutto said.
“Or, if he doesn’t do so, does the president have the muscle and the will to be able to say, I will remove you for a period and, let’s wait for what will happen in court and let us expedite the court process.