These suspensions and enquiries became necessary as a result of the circumstances surrounding the preferring and withdrawal of insupportable and trumped up criminal charges against Minister Pravin Gordhan, MP and others, with disastrous consequences for the administration of justice and the economy.
In his answering papers, the President has indicated that he is of the view that utter incompetence, recklessness and misconduct on the part of the relevant prosecutors are not grounds warranting a suspension or institution of a disciplinary enquiry. He has also indicated that, in any event, he has afforded the relevant prosecutors until 28 November 2016 to make representations to him in relation to the proposed suspension and enquiry. It is unclear why these extensive representations are sought, when the opportunity to make full submissions on the merits will be at the disciplinary enquiry; moreover, the relevant prosecutors have now had a chance to state their case in lengthy answering affidavits (totalling over 300 pages) in the proceedings brought by HSF and FUL.
The President had previously undertaken to HSF and FUL that he would make a decision in respect of these suspensions and enquiries by 21 November 2016. It is clear that he will not even meet this deadline.
The President has given no indication as to when the decision to suspend itself will be taken. It seems, therefore, that the President intends, for reasons he has not explained, to draw out and delay the process unnecessary and unlawfully. This is particularly unacceptable in circumstances where he has clearly misconstrued his powers and has closed his mind on the topic of suspension and enquiry.
The answering papers, despite their prolixity, make out no substantive case for the President not to suspend the relevant prosecutors and not to institute the disciplinary enquiries mandated in terms of the National Prosecuting Authority Act, 1998.
With public confidence in the NPA in tatters, and threats of fresh charges against Minister Gordhan being mulled by the compromised Mr Abrahams and his subordinates, any further delay by the President has the potential to be catastrophic. HSF and FUL are thus proceeding with the application to vindicate the requirement of lawful and rational government conduct, and to uphold the public interest.
For a copy of the replying affidavit, click here.
