Seen from a legal standpoint, the National Prosecuting Authority’s case against finance minister Pravin Gordhan appears tenuous at best.
The allegation is that Gordhan committed fraud (or theft) by instructing the SA Revenue Service (Sars) to pay a R1.1m penalty to the Government Pension Fund so that Sars deputy commissioner Ivan Pillay, for personal reasons, could retire early. There is also another charge (again of fraud) for instructing Sars’ human resources team to re-employ Pillay.
Let’s start from the beginning: fraud is the intentional unlawful making of a misrepresentation which causes actual or potential prejudice. Theft is the intentional unlawful appropriation of property capable of being stolen.
To fully assess the merits, you have to consider each element in turn.
On the first element (though starting in reverse) the facts suggest Sars may have suffered a proprietary prejudice by paying Pillay’s penalty. But on the second element it’s not entirely clear if there was any misrepresentation.
If Sars was not liable to pay a penalty if Pillay retired early for personal reasons, the state could argue this was a misrepresentation.
But Freedom Under Law and the Helen Suzman Foundation have already argued that even if Pillay retired early for personal reasons, Sars would be liable to pay the penalty. If they’re right, without going any further, there cannot be a conviction on the main count.
On the second fraud charge, Gordhan is alleged to have misrepresented that Pillay was to be reappointed into a specific role for a particular period.
But Gordhan’s instruction would only constitute a misrepresentation if Pillay could not lawfully be appointed into that position for that period.
However, if Gordhan had statutory authority for what he did — which Freedom Under Law and the Helen Suzman Foundation say he did — this couldn’t be considered unlawful.
Then we come to the area where the NPA will have the most difficulty: intention. Here, the odds of convicting Gordhan become virtually impossible.
After the Oscar Pistorius trial, many know that intention extends to what an accused person merely subjectively foresaw as (substantially) possible.
For fraud, the state must prove that Gordhan knew or, at least, foresaw the substantial possibility that his representation was false, that it could cause prejudice or loss to Sars, and that he had no authority to make that representation. For theft, the state must prove he knew or at least foresaw the substantial possibility that his conduct was an appropriation and he had no authority to issue the instruction.
Since 1977, our law has also recognised the defence of mistake of law. Ignorance of the law is an excuse — no matter how unreasonable. Even if Gordhan was unreasonably ignorant of the law, he still couldn’t be convicted. So it seems unlikely the state could prove intention.
So, one wonders, what sort of evidence would the state need to make its case? Well, practically, if it was to find a witness who would say he or she told Gordhan that though this sort of thing had been done numerous times before, it was unlawful. This would be the "smoking gun".
If there is such evidence, Gordhan may be in trouble. If not, the case appears unwinnable.
So, even if the state can prove Gordhan acted unlawfully (which seems doubtful) does it have this "smoking gun" to prove, at least, intention?
Here we can only speculate until the state reveals the docket. If we must speculate, it would be strange indeed if the state had that evidence and had made no reference to it yet. But then, these are strange days indeed.
• Grant has a PhD in criminal law and is a former associate professor at Wits University and a practising advocate