REQUEST FOR DISBARMENT: MR. SHAUN ABRAHAMS
This letter serves as a call to the General Council of the Bar for the disbarment of Mr Shaun Abrahams and the removal of his name from the roll of advocates.
Mr Abrahams is the National Director of Public Prosecutions and thus the head of the National Prosecutions Authority (NPA). For the reasons listed hereunder, we, the Economic Freedom Fighters believe that Mr Abrahams has violated his Constitutional ethical duties and that he is neither competent nor fit and proper to be an Advocate of the High Court in terms of section 9(1)(b) of the NATIONAL PROSECUTING AUTHORITY ACT 32 OF 1998:
Text of the letter:
The General Council of the Bar
Attention: Chairperson: Adv V Ngalwana SC 2nd Floor, Fountain Chambers
West Wing, Sandton Village 86 Maude Street SANDTON
2146
Dear Adv Ngulwana
REQUEST FOR DISBARMENT: MR. SHAUN ABRAHAMS
This letter serves as a call to the General Council of the Bar for the disbarment of Mr Shaun Abrahams and the removal of his name from the roll of advocates.
Mr Abrahams is the National Director of Public Prosecutions and thus the head of the National Prosecutions Authority (NPA). For the reasons listed hereunder, we, the Economic Freedom Fighters believe that Mr Abrahams has violated his Constitutional ethical duties and that he is neither competent nor fit and proper to be an Advocate of the High Court in terms of section 9(1)(b) of the NATIONAL PROSECUTING AUTHORITY ACT 32 OF 1998:
1. IMPROPER MEETING AT HEADQUARTERS OF THE RULING POLITICAL PARTY
The office of the NPA confirmed that on 10 October 2016, Mr Abrahams held a meeting with the Minister of Justice, Mr Michael Masutha, the President of the Republic of South Africa, President Jacob Zuma and two other cabinet ministers (Intelligence and Social Development) at the Headquarters of the ANC. These ministers ought not to be involved in or have anything to do with prosecutions or the NPA itself in terms of the National Prosecuting Authority Act, 32 OF 1998.
This meeting was held a day before the Minister of Finance, Honourable Minister Pravin Gordhan was charged (by the NPA) with fraud. It is therefore inexplicable that the following day, the NPA announced in a highly charged press conference, the arraignment of Minister Gordhan on spurious charges.
It is unprecedented, inexplicable and unjustifiable that the Head of the NPA would hold meetings with leaders of political parties and the Executives of the State at their party political head office to discuss anything related to potential prosecutorial matters.
It was subsequently contended by both offices that the matter of the
#FeesMustFall student protest, arrests and prosecution was discussed at the above detailed meeting. This then occurred in the absence of the Ministers of Police and Higher Education. This is nonsensical and inconsistent with the provisions of Section 179(4) of the Constitution of the Republic of South Africa (‘the Constitution) which provides that “ National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice.”
By being part of such a meeting, Mr Abrahams compromised both his integrity and impartiality and further brought into question the independence of the NPA from political interference.
2. USE OF AN ACT WHICH IS INCONSISTENT WITH THE CONSTITUTION
Inexplicably, three days after the above detailed Luthuli House meeting with the President and Minister of Intelligence, on 13 October 2016, the NPA subpoenaed the Commander in Chief of the EFF, Mr Julius Malema to appear on different dates and courts on a charge of inciting people to grab land unlawfully. Mr Abrahams used the Riotous Assemblies Act 17 of 1956 (“the Act”) to charge a leader of a political party for allegedly having made a remark in a party conference in December 2014 and at an elections rally in June 2016.
The preamble of the Act reads thus ‘To consolidate the laws relating to riotous assemblies and the prohibition of the engendering of feelings of hostility between the European and non-European inhabitants of the Union and matters incidental thereto, and the laws relating to certain offences’.
The Act is inconsistent with the letter and spirit of the Constitution in that it regulates racial relations and promotes protection of white racial supremacy.
Section 2 of the Constitution provides that any law inconsistent with the Constitution is invalid. It follows therefore that the Riotous Assemblies Act is invalid and any advocate worth his title would not make use of such a law in a non-racial constitutional democracy.
Accordingly, Mr Abrahams is not worth his title and he ought to be disbarred. His aforementioned conduct is an embarrassment to the profession. His blatant impartiality and lack of integrity is causing grave prejudice to the legal profession. His remaining in office as the NDPP and on the roll of advocates brings the legal profession into disrepute and makes them look like a club of intellectually impaired scholars of law who lack integrity.
3. INTERFERING WITH ADMINISTRATIVE POWERS VESTED IN ACCOUNTING OFFICERS AND EXECUTIVE AUTHORITY
It is common cause that the President demoted Minister Pravin Gordhan to another ministerial position away from the Treasury and that Minister Pravin Gordhan has damning evidence relating to the President’s friends –the Gupta Family- being involved in the alleged State Capture, which involves them looting Treasury and the fiscus.
The charging of the Minister of Finance on the long awaited and much anticipated eve of the Public Protector’s publication of her report on State Capture and subsequent urgent interdicting of the publication of this report speaks for itself as to the coincidence of these events and actions.
Furthermore, the charges are spurious in that they are based on administrative actions taken by him being enabled and empowered by legislative instruments applicable to the office he holds or held then. Charging him for exercising his administrative powers is interference at the least and comical at the most. This shows both incompetence and lack of fitness to hold such office on the part of Mr Abrahams.
His failure to recognise the powers of Executive Authority and Accounting Officers in terms of the Public Service Act and many other related Rules and Regulations governing the administrative actions of the Minister then and now is inexcusable. The probability that such charges against Minister Pravin Gordhan were discussed in the admitted meeting at Luthuli House cannot be ruled out.
The negative inferences to be drawn from the detailed circumstances in which the decisions to prosecute Messers Gordhan and Malema are further substantiated if cognisance is taken of the following facts:
1. Mr Shaun Abrahams was formerly a member of the Priority Crimes Litigation Unit (“PCLU”), prior to his elevation to the position of NDPP;
2. This was done at the instance of the President, Jacob Zuma;
3. The PCLU was created by Presidential proclamation on 23 March 2003 and is located in the office of the NDPP;
4. The PCLU has no investigative capacity and is reliant on the SAPS and the DSO in this regard;
5. The PCLU’s mandate is to manage and direct investigations and prosecutions relating to particular matters, which are listed as Criminal prosecutions arising from the Rome Statute (note the irony), Crimes against the State, including national and international terrorism, Contraventions of The Regulation of Foreign Military Assistance Act, Non- Proliferation of Weapons of Mass Destruction Act, The National Conventional Arms Control Act, The Nuclear Energy Act. The Intelligence Services Act, Matters emanating from the TRC process, and Any other priority crimes as determined by the National Director.
6. Consequently, the only basis upon which the PCLU could have been mandated to investigate Messers Gordhan and Malema is if the current charges that they face were determined to be priority crimes by the NDPP, Mr Shaun Abrahams.
7. Mr Shaun Abrahams thus simultaneously determined these frivolous charges to be “priority crimes” and retained the right to review the decision by PCLU to prosecute these offences.
8. This further explains his shambolic invitation to Minister Gordhan and his co-accused to make representations to him to review the decision to charge them and the subsequent further investigation of the matter instead of a bona fide review of that decision when he received compelling reasons to withdraw the charges.
9. In essence, he was the initiator of this prosecutorial process and sought to justify it at all costs.
10. It is clear that he would not have sufficient regard to the true facts and has acted mala fide under political pressure.
4. IMPROPER MEETING WITH AN ACCUSED PERSON
President Jacob Zuma is curently attempting to appeal against the re- institution of more than 780 criminal charges against him. Despite this, Mr Abrahams held a meeting with President Zuma on 10 October 2016 at the offices of the ANC.
It is highly improper and irregular for a person who is appealing the reinstatement of charges against him by the NPA, to meet with the head thereof in a secret meeting. This is aggrevated when such a meeting takes place at the offices of the political party of which the accused or aspirant appellant is the Leader and President of that political and ruling party. This brings into question the independence of the National Director of Public Prosecutions and his ability to act impartially and without fear, favour, bias or influence.
It should be further noted that the NPA has appealed the High Court judgement that it should re-instate the more than 780 serious charges against Mr. Jacob Zuma not withstanding that the Supreme Court of Appeal dealt with a similar matter in the past and had ordered re-instatement of charges.
It is improper that these two persons, the NDPP and the President should meet in the office of a political party where the one is a criminally accused person and the other person, by virtue of his office has a Constitutional duty to decide whether to prosecute or not.
This poor judgement on the part of the head of NPA is sufficient reason alone to conclude that he is not fit or competent and lacks the integrity to prosecute objectively, impartially and without fear or favour.
5. DISCUSSION WITH THE PRESIDENT AND MINISTERS MATTERS FOR WHICH IT IS PROBABLE THE NPA WILL HAVE TO TAKE A PROSECUTORIAL DECISION
The Minister of justice has contended that at the said meeting the
#FeesMustFall student protests were discussed. It is highly improper for the Director of Public Prosecutions to discuss such issues with the President in particular or any other Minister other than the Minister of Justice.
It is common cause that the ruling party and the executive is highly disturbed by the student protest and they are in full support of police brutality against students and have called on law enforcement agencies to arrest and get the protesting students convicted.
Successful conviction in a court of law is meant to be the exclusive domain of the National Prosecuting Authority, which is headed by the very same Mr. Shaun Abrahams. It would therefore be prudent for all prosecutions and convictions of students alleged to have been discossed at the Luthuli House meeting to be regarded as tainted and vitiated by irregularity on account of the sinister and improper interference by the President and Ministers who ought not to have played any role in such a decision in a political party’s headquarters.
In the circumstances listed above, we believe that the above reasons are sufficient for the General Council of the Bar to apply for the striking of Mr Abrahams from the Roll of Advocates. The EFF reserves its right and may pursue this matter in Court should the General Council of the Bar decline this request.
Yours faithfully
CMSR. GODRICH GARDEE
SECRETARY GENERAL
DATE: 31ST OCTOBER 2016
