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Cape Town - A subpoena served on the CEO of the Government Pension Administration Agency proves "the NPA does and had never [had] completed sufficient investigations nor had sufficient evidence to take the formidable decision to prefer charges" against Finance Minister Pravin Gordhan.
This is the view of Francis Antonie, director of the Helen Suzman Foundation (HSF), in his supplementary affidavit filed at the North Gauteng High Court on Wednesday.
In his explosive affidavit, Antonie reveals that nine days after Advocate Shaun Abrahams, the national director of public prosecutions, announced Gordhan would be charged with fraud, the Hawks and the National Prosecuting Authority (NPA) were still collecting evidence to use against the finance minister.
The HSF and Freedom Under Law are challenging the NPA's decision to charge Gordhan in court and are applying for a permanent stay of prosecution.
After filing his founding affidavit last week, Antonie obtained "highly relevant" information that he is now placing before the court.
"Regretfully, the recent evidence which has emerged has confirmed all the fears of, and the case advanced by, the applicants in the founding affidavit."
Pension fund CEO asked to provide feedback on early retirement applications
The evidence he received was a copy of a subpoena issued to Krishen Sukdev, CEO of the Government Pensions Administration Agency. The agency administers funds on behalf of the Government Employees Pension Fund (GEPF).
In the subpoena, Sukdev is asked to provide statistics of the approval of 3 000 applications for early retirement to the GEPF from various government employees who retired before they turned 60; five requests of staff members whose early retirement were approved by finance ministers between 2008 and 2010, and an affidavit "clarifying whether GEPF approves requests from various departments for staff members who retire before the age of 60 with full benefits".
Gordhan is accused of fraudulently approving the payment of an early pension to Ivan Pillay, the former deputy head of the South African Revenue Service (Sars). As a result, Sars had to pay a penalty of R1.2m.
A public outcry ensued in the aftermath of Gordhan's charges being made public, with numerous commentators stating that it was a common practice for government employees to go on early retirement.
"Clearly, any evidence which spoke to the practices and lawfulness of early retirement of public servant with full pension had to be fully investigated and considered before charging (Gordhan)," states Antonie. Gordhan referred to these policies in his response to the Hawks.
Ulterior purposes
According to Antonie this proves the decision to charge Gordhan "clearly failed to consider the actual evidence pertinent to the charge". It appears that the NPA had "elected to ignore any facts which had the potential to corroborate the lawfulness of the conduct in question".
This reinforces the submission that the charges against Gordhan were pursued for an ulterior purpose, Antonie states.
"That the prosecuting authorities are only now calling for the evidence and considering the applicable laws simply reinforces the unlawfulness of the charges and the abusive and precipitous manner in which they were pressed."
Gordhan, Pillay and former Sars commissioner Oupa Magashula are scheduled to appear in the Pretoria Regional Court on November 2.
