The decision to drop charges against finance minister Pravin Gordhan came three days after a memo came to light proving that a legal opinion had been sought from a senior official at the SA Revenue Service (Sars) regarding the payout of former commissioner Ivan Pillay’s pension fund.
Vlok Symington, from the legal & policy division, provided a legal opinion in March 2009 about whether Sars was permitted to pay out Pillay and rehire him on a contract basis. According to Symington’s memo from the time, Pillay’s application for early retirement "should be considered together with his application for the minister [Gordhan] to approve the benefit penalty payment by Sars as well as his request for post-retirement contract employment at Sars ".
This week the head of the National Prosecuting Authority (NPA) , Shaun Abrahams , said he had not been aware of the memo when he announced that Gordhan, Pillay and former commissioner Oupa Magashula would be charged with fraud.
This has heightened the speculation that the charges against the three, especially Gordhan, were politically motivated and an attempt to capture national treasury. The charges were dropped on Monday.
The announcement that Gordhan was being charged triggered an outpouring of support for the minister from business, civil society and citizens, as well as fellow cabinet ministers and politicians.
Under the banner "People’s assembly against state capture", 80 CEOs and a number of attorneys and other legal professionals were on Wednesday to march to the high court in Pretoria , where the three were meant to appear . The EFF and civil society groups were also planning to march.
Gordhan, Pillay and Magashula would have appeared in court on Wednesday had the NPA continued with its prosecution.
"I only became aware of the Symington affidavit as a result of the submissions made to me by Freedom Under Law and the Helen Suzman Foundation," said Abrahams.
"I secondly became aware of it when Mr Ivan Pillay’s legal team made representations to me and presented me with a copy of the Symington memorandum or legal opinion."
He insisted that the initial decision to prosecute the three was based on facts presented to him in the Hawks docket, along with other relevant information. He said he did not have information before him that the Hawks withheld any details.
Last week, audio and video recordings were leaked of Symington allegedly being held against his will in an office boardroom by the Hawks and current Sars commissioner Tom Moyane’s bodyguard.
They were trying to retrieve a printout of an e-mail in which a Sars lawyer said he could not be involved in the matter against Gordhan for ethical reasons. The e-mail was erroneously sent to Symington, reportedly by Moyane.
In his email to Moyane — a response to queries from Hawks lead investigator brigadier Nyameka Xaba — David Maphakela, of Mashiane, Moodley & Monama Inc, wrote: "On ethical reasons, I cannot be involved in this one, as I hold a different view to the one pursued by the NPA and the Hawks."
When the Hawks arrived at the Sars head office to retrieve the e-mail, Symington recorded the episode and handed the evidence of the so-called "hostage" situation to the Independent Police Investigative Directorate, led by Robert McBride. Four Hawks officers have been implicated, including Xaba.
Sars announced on Friday it would institute an internal investigation into the incident. An internal communication was also sent to staff by Moyane, indicating he had responded to concerns and instituted an internal investigation to look into the circumstances around the incident, including the "conduct of all role players".
Opposition parties have called on President Jacob Zuma to suspend Abrahams, pending an inquiry into his fitness to hold office. The EFF has written to the General Council of the Bar asking that he be removed as an advocate. His second-in-charge, Nomgcobo Jiba, was recently struck off the roll after an order by the high court in Pretoria. She is appealing the court decision and has been suspended.