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 mis...
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