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  • Founding Affidavit (Part 1) 23102016

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    Founding Affidavit (Part 1) in the matter between the Helen Suzman Foundation and Freedom Under Law as the two Applicants, and seven Respondents, including the National Prosecuting Authority.

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    Founding Affidavit (Part 1) in the matter between the Helen Suzman Foundation and Freedom Under Law as the two Applicants, and seven Respondents, including the National Prosecuting Authority.

    Direitos autorais:

    © All Rights Reserved
    Baixe no formato PDF ou leia online no Scribd
    Sinalizar o conteúdo como inadequado
    2K visualizações90 páginas

    Founding Affidavit (Part 1) 23102016

    Enviado por

    eNCA.com
    Founding Affidavit (Part 1) in the matter between the Helen Suzman Foundation and Freedom Under Law as the two Applicants, and seven Respondents, including the National Prosecuting Authority.

    Direitos autorais:

    © All Rights Reserved
    Baixe no formato PDF ou leia online no Scribd
    Sinalizar o conteúdo como inadequado
    de 90
    IN THE HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA) CASE NO, In the mater between: HELEN SUZMAN FOUNDATION First Applicant FREEDOM UNDER LAW NPC ‘Second Applicant and ‘THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Fist Respondent DR JP PRETORIUS SC ‘Second Respondent SIBONGILE MZINYATHI Third Respondent ‘THE NATIONAL PROSECUTING AUTHORITY Fourth Respondent PRAVIN JAMNADAS GORDHAN, MP Fith Respondent GEORGE "OUPA" MAGASHULA ‘Sith Respondent VISVANATHAN "IVAN" PILLAY Seventh Respondent FOUNDING AFFIDAVIT | the undersigned FRANCIS ANTONIE do hereby make oath and say that 1. am an adutt male director of the applicant, the Helen Suzman Foundation used a2 Srtome Roa Parkin, hares HA CHS | am duly authorisad to depose to tis affidavit on bohat of the applicants. ‘The facts contained in this alfidavit are within my personal knowledge, unless. It appears otherwise from the context, and are both ue and correct. Where: facts are not witrin my personal knowledge, | refer to the confirratory affidavit of Mr WJ Timm that will be fled herewith. All legal submissions are made on the advice of the applicants’ legal representatives. INTRODUCTION 5 This is an urgent appication seeking to review, set aside and declare Uslawul charges wich have been brought against the Minstr of Finance, Ne Pravin Gordhan, MP (‘Min, Gordhan’) by the National Prosecuting ‘Authority (NPA), the decision to press the charges, the failure, or decision rot to review and withdraw the charges and related decisions. ‘These charges are, quite apart from being drafted in terms of the vaguest oneralty, bad in law, vacuous and unsustainable on any basis (in law and (onthe facts), Its, moreover, telng that these charges inctude new subject mater, relying fon diferent acis to the wellpubleised “chargos* which have been invostgated by the Directorate for Priory Crime Investigations (DPC) for ‘months now, reported upon in the media and in respect of which Min Gordian was to present himself 1o give warning statement tothe DPC [As will be demonstrated below, the new charges preferred against Min. Gordian (being fraud, with an alternate count of thet) relate to actions which 16. a ‘ave perissible in, ur even required by, aw and are supported by precedent (with these actions having occurred thousands of times previously with no ‘government or criminal sanction) and contemporaneous documentation Moreover, the factual matrix is such that the necessary consftions to satisty the jurscitional elements ofthe alleged crimes are, on any sensible version, absent Despite the charges clearly being bad in law and incapable of prosecution, the NPA was afforded an opportunity to withdraw the charges, alternatively to fumish a record and reasons for decision, It elected to do neither. The inaluctable conclusion Is thal the charges are baseless, and no evidence exists which justifies, even on a prima facie basis, the pursuing ef such charges. “The timing ofthe bringing ofthe charges is further worrying, not least given that ‘Min. Gorchan has not been precognised ofthese charges (or even that all these allegations ware the subject of an investigation), and was not called upon to make any representations in respect of all of these charges (a belated afterthe-act invitation for him to do so simply Confirms the flawed fst step}; the facts relied upon have been in the public domain for almost six years (in respect of charge 1, atleast); and the charges were brought, amidst a fanfare of inedible theatricality, at ‘a most senstive time for our economy, weeks before Min. Gordhan delivers the Mid Term Budget and days ater Min. Gordhan retumed 10 12, 13, 14 15 4 from abroad, where he was attempting 10 convince the international ‘community of, infer aia the stabilty ofthe South Atican economy. “The urgency is exacerbated by by the fact that the uncertainty over Min, Gordhan's future is causing political and economic instability, with ‘suggestions that Min, Gordhan must be removed or step down by virtue of ‘the charges (regaraess of he sustainabilty or veracity of the charges). When the charges were announced by the fist respondent on 11 October 2016 (al a bizare press-conference, reminiscent of a show tia, over 50 billion was wiped off the Johannesburg Secures Exchange almost immediatly. This highights the national importance of this matter, which concems not oniy the liberty and dignity of an individual, but also the ‘economy of the Repubtc. [A best, here appears to be a fatal cisregard for consttutonal duty at the [NPA where unsustainable charges are being proceeded wit (causing untold national harm). At worst, he NPA is acting onthe basis of ulterior purposes rin bad fat ‘Tho charges are without any mit. The unsustainablty of he charges is an issue which has been pointed out to the first o fourth respondents repeatedly and yet the frst to fourth respondents persist in ther actions, The only reasonable inference to be drawn from ths is thatthe charges are being pursued for purposes other than those set forth inthe empowering provision ‘oF in leQiation. Quite apart trom ulterior purposes, however, there is & myriad of further grounds of review which vate the charges and the impugned decisions. These inclide eror of law, error of fact, abuse of discretion, failure to consider relevant considerations and irationaiy. 11 16, 7 5 ‘As willbe shown below, the issues in respect of the charges are not complex. ‘The NPA simply has no case, no matter under what light one examines the ‘evidence and legislation. ‘The limited remit of the legal issues, however, does not detract trom the: national importance of tis application. This applietion is anticipated to have: signieant consequences and ramitcations forthe economy ofthe Republic: the proper functioning ofthe Executive; the police! batles apparently being waged for contol of State resources; he proper functioning and deployment of puble power; and publc confidence in, and the perception of, State prosecutorial and investigative bodies, which are required under our Constitution and legislation to be independent, unbiased and competent. PARTIES 18 19, 20. ‘The frst applicant inthis application is the HSF. The HSF was established in 1999, and is a non-governmental organisation whose objectives are "to fend the values that underpin our liberal constitutional democracy and to promote respect for human rights. The second applicant Is Freedom Under Law NPC (‘FUL’), FUL is an ‘organisation that is primarily concerned with upholding the Constitution ofthe Republic of South Africa, 1996 ("the Constitution’), constiutionalism and the rule of law, particularly in the context of law enforcement agencies. ‘Te applicants approach this Honourable Cour, fst, in their own intrest. They are both organisations that are primarly concerned wih the principles ‘of democracy and constuonalsm, as well a¢ the le of law. The applicants contend that the NPA has acted unlawfuly, iationaly and Contrary to its mandate as the law enforcement body tasked with the 12 at 22, 2a, 6 prosecution of crimes in South Alica. The appicats thus have an interest in ensuring thatthe unlawiul decisions ofthe NPA are set aside and that the NPA be provented from taking further unlawful decisions which wil prejucice the Republic as a whole and do ireparable violence to our democracy. ‘Te applicants also approach this Honourable Cour inthe public intrest. All South Aticans have an interest in the rule of law, the requirements for @ propety functioning constitutional democracy, and in particular, that bodies charged with law enforcement and the prosecution of crimes act awful, in 9004 faith, in accordance with their mandates, independently and in the best interests ofthe Repubiic. The farseaching powers and functions of the NPA mean that i is essential that they act responsibly and in good faith in their Interactions with members ofthe public and al other public officials. The NPA is charged, as par of its core mandate, with the combatting and prosecution of corruption and other priory offences, which are, by their vory ature, of great public Import and central to the administration of justice. tis cute clay in the public intrast that the functions of the NPA be undertaken lawfully and in good faith in accordance with its mandate. Of equal importance ie that, once the law enforsement bodies have investigated crimes, the NPA act fo prosecute crimes where the facts established in the investigation stage evidence the commission of those crimes. Where the facts evidence no commission of any crime, itis incumbent upon the NPA Limeously to reject the allegations. In a high-profile matter with national consequences, this duty is heightened. For the NPA to use iis powers to act unlawfully, iationaly, for ulterior purposes andior contrary to their mandates is clearly unconstitutional. Its conduct in bringing the charges smacks of intimidation, harassment and the 13 (= 24, 25, 26, 21. 7 furthering of a vendetta against Min. Gordhan. The conduct isthe antithesis of an independent body doing its duty under law without fear, favour oF prejuice It isin the public interest that any abuses of power be prevented and the responsible partes held to account ‘Tho fist respondent isthe National Director of Pubo Prosecutions (‘the NDPP"), curenty, Mr Shaun Abrahams. The NOPPs offeo is located at Victoria and Grifths Nxenge Building, 128 Westiake Avenue, Weavind Park, Siveron, Pretoria, The NOPP is cited in his capacty as NOPP and as the representative of the NPA. Papers wil be served atthe above aderess and by way of email tothe email addrasses of Mr Abrahams, the curcent NDPP, and his executive assistant: skabrahams@npa.gov.za; and hewat@npa.gov.z. ‘The second respondent is Dr JP Pretorius SC, the acting special director of the Pritiy Grimes Litigation Unt, cited in his personal and oficial capac, whose place of business is at Vetoa and Grits Menge Building, 123, Westake Avenue, Weavind Paik, Silverton, Protea. Dr Pretorus is apparently the prosecutor who has elected to proceed with the charges against Minister Gordhan. Papers wil be served at the above address and by way of email to the email addresses of Or Pretorius: Jppretorius@npa.gov.2a and kbenjamin@npa.gov.za The thd respondent is Sibongile Mzinyathi, the Director of Public Prosecutions, North Gauteng, whose place of business is at Victoria and Gaifiths Mxenge Building, 128 Westlake Avenue, Weavind Park, Siverton, Protoria. Advocate Mzinyathi Is apparently the prosecutor who, with Or 14 28 29, 31 ® Pretorius, has elected to proceed wih the charges against Minister Gordhan. Papers will be served at the above address and electrically at ippretorus@npa.gov 2a; Kbenjamin@npa.gov.2a; skabrahams@npa.gov 2a: and hewat@npa.gov.2a. “The fourth respondent is the NPA. The NPAs office is located at Victoria and Gifts Menge Bulléing, 123 Westlake Avenue, Weevind Park, Siverton, Pretoria, Papers will be sorved atthe above adresses and electronically at ippretoius@npa.gov.za; Kborjamin@npa.gov 2a; sabrahams@npa.govz8 and hzwat@npa.gov.za ‘The fith respondent is Min. Gordhan, Min, Gordhan is cited in both his official capacity, as the Minister of Finance, as well as in his personal capacity. He is cited for his interest in this matter. No rela is sought against ‘Min. Gordhan in these proceedings. Min. Gorchan's attorneys, Gildentuys Melati Inc, have consented to receipt of the application by email at {malati@gminc.co.za. Papers will also be served on the Stale Attorney at ‘SALU Builsing, 318 Thabo Sehume Street, Pretoria. The shh respondent is George “Oupat Magashula, a co-accused wih Min. Gordhan. Mr Mageshula's further details are not known tothe applicants, but he has consented to service ofall papers care of Tiney Inc, Stso Nxasana House, 1% Floor, 269 Oxford AG, Move, Johannesburg; and mmichaoi@'ilneyine.co.2a. No roi! is sought against Me Magashuia in these proceedings, whois cited for any interest he may have in this matter. ‘The seventh respondent is Visvanathan "Ivan" Pilay, a co-accused with Mi, Gorchan. Mr Pitay’s further details are not known to the applicants, but he has consented to service of all papers at care of Allan Levin & Associates, 80, 15 ° Corlet! Drive, Melrose North, Johannesburg; and robet@ala.co.2a and brad@ala.co.za. No rolief is sought against Mr Pilay In these proceedings, who is cited for any interest he may have inthis matter. [STANDING AND A CLEAR RIGHT 9, 3 34, 38, ‘This is an urgent review, based on, inter ala, he principle of legalty and the rule of law. Whilst Min. Gordhan enjoys, as do all individuals, the right not Lnlanfuly to be prosecuted, the rights in issue inthis matter far exceed only Min. Gorshan's. Min. Gordhan's is no ordinary prosecution ‘The applicants approach this court to guard against a constitutional crisis, whore it appears that independent institions, such as the NPA, are being abused; have been captured or unduly influenced by third parts: are acting irationaly, arbitrary or for ulterior purpose and the poltical or financial gain of others; and are acing in a manner inconsistent with their mandates. These principle of legality concerns, coupled with the national importance of the rater, the implications for the functioning of the Executive, perceptions of INPA independence and the devastating economic and other effects of the prosecution of Min. Gordhan, make it uniquely in the publi interest for the legalities In raspact of the charges to ba righted through the High Court Immediately “The applicants clearly have standing to pursue this matter, and rely on clear Fights (of their own and of the public's) to ground the relief sought In addtion to what has been stated above pertaining o the applicants acting In their own and the public interest, it is clear thatthe decision to prosecute Min, Gordhan represents a material and fundamental incursion inte important 16 ‘ rs 17 10 facets of democracy, which facets must, in the public interest, be protecte. ‘This is thus pre-eminently a case where the applicants should, and do, act the public interest 96. As the Constitutional Court has recenty hoc "One of the crucial elements of our constitutional vision isto make =

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