DPP set to adopt high profile cases

As South African advocate resigns in a huff

RELEBOHILE TSOAMOTSE

MASERU – The Director of Public Prosecutions (DPP), Advocate Hlalefang Motinyane, says she will be forced to personally prosecute the high profile criminal cases that were led in court by South Africa’s Advocate Shaun Abrahams following his resignation. Abrahams resigned on Monday this week before High Court judge, Justice Charles Hungwe.

He electronically filed a notice of withdrawal citing administrative and professional differences that remain unsolved between him and the office of the DPP. “Over the last year, the Director of Public Prosecutions (DPP) and I have attempted to resolve administrative and professional differences, which have remained unsolved despite numerous attempts at finding amicable solution thereto,” said Abrahams in the notice.

As a result, Abrahams says he has withdrawn from all matters he was briefed on. Advocate Motinyane told the court that she is exploring possibilities of Abrahams’s extended stay, but explained that in the event that she fails to influence the South African’s stay, she will step up and prosecute the cases.

“I am aware of the hiccups this withdrawal is going to cause because Advocate Abrahams had been working for so long on the matter and had interviewed most witnesses. I am, however, duty-bound to ensure that the matter has been resolved by the end of the week,” Motinyane added.

Advocate Abrahams was engaged by the former Prime Minister Motsoahae Thabane-led government in January 2019 to prosecute slain army commander, Lieutenant General Maaparankoe Mahao’s murder trial. His assignment was extended when three other cases were added on his workload.

He was also involved in Police Constable Mokalekale Khetheng murder trial, the controversial treason and murder case against Lesotho Congress of Democracy leader, Mothetjoa Metsing, and the leader of the Movement for Economic Change, Selibe Mochoboroane, as well as a corruption case against Alliance of Democrats Secretary General, Dr Mahali Phamotse.

State of the cases Abrahams was prosecuting

Since these cases were rocked by controversies and a number of interlocutory applications, most of which escalated to the Court of Appeal and thereby forcing suspending the main trials in the process, little progress has been made on the cases.

The 18-month period set to prosecute the cases has long passed forcing an extension of working contracts for the two foreign judges hired to preside on them. Despite the move, Mahao’s murder trial only kick started on June 3 this year. Mahao was killed on June 25, 2015, when Lesotho experienced political disturbances that affected the army.

About 58 witnesses have been lined up to testify in the trial but only two witnesses have testified so far and the trial has since been postponed to September. In the Khetheng case, only four witnesses have so far testified out of the 60 lined up. The trial was postponed after two of the lawyers involved reported sick.

In another, Abrahams appeared before Chief Justice Sakoane Sakoane last week wherein he was arguing for Metsing and Mochoboroane’s joinder in a pending murder trial. Retired army commander, Lieutenant General Tlali Kamoli and two other soldiers have been charged with the murder of police Sub Inspector Mokheseng Ramahloko on August 30, 2014.

The events of the day are alleged to be an attempted coup and the prosecuting authority has resolved to institute treason charges against those implicated. Metsing and Mochoboroane are suspects and the state has joined them in the already pending trial, they are objecting to their joinder.

The prosecution says it only became evident that the two politicians are implicated when preparing for the trial hence the decision only to indict them two years later. This has resulted with no progress being made at all on the main trial which has been postponed for one reason and the other. The corruption case against Phamotse was for a pre-trial conference last week and evidence had also not been led. It remains to be seen what happens to the four cases.

Who is Shaun Abrahams?

He is former South African chief prosecutor. Prior to replacing former National Director of Public Prosecutions (NDPP) Mxolisi Nxasana, Abrahams had been a senior state advocate in the Priority Crimes Litigation Unit.

Questions were immediately raised about his meteoric rise ahead of other senior prosecutors. He joined the NPA as an administrative clerk in a provincial office while completing his legal studies. He holds B Iuris, B Proc and LLB degrees, obtained part-time from the University of Natal, Pietermaritzburg.

Abrahams was accused of helping Zuma duck corruption charges, earning the nickname “Shaun the sheep” though he has described himself as “nobody’s man”. Zuma, who was at pains to remove Nxasana from the helm of the national prosecuting body, paid the latter a golden handshake of M17.5 million to leave. However, Abrahams’ appointment was challenged by Freedom Under Law, and on 8 December, 2017, was set aside by a full bench of the High Court, finding that he was irregularly appointed.

Three Pretoria High Court judges – led by Judge President Dunstan Mlambo – found that the Nxasana payoff was invalid and violated the NPA Act. Mlambo and his fellow judges rejected arguments by Abrahams, Zuma and the NPA that Abrahams should be allowed to stay in his post. “Is it just and equitable to leave Adv Abrahams untouched in the office? We do not believe it is, for these reasons. First, if the vindication of the Constitution is paramount, an order which leaves Adv Abrahams’ position intact does not serve that objective. … the President will have achieved, through unlawful means, precisely what he had wished to attain all along.”

The court also ruled that President Zuma was conflicted and therefore a replacement should be appointed by the Deputy President Cyril Ramaphosa instead. Abrahams and the NPA appealed this ruling, but in August 2018 the Constitutional Court ordered Shaun Abrahams to vacate his position allowing Ramaphosa to appoint a new NDPP. The Constitutional Court found that Abrahams and Nxasana were both not suitable for the position.

The court found that Zuma had abused power and state resources in his desperate bid to anoint a pliant NDPP and “compromised the integrity of the office and brought instability to the prosecuting body”. “The removal was an abuse of power. Advocate Abrahams benefited from the abuse of power. It matters not that he may not have been aware of the abuse of power. The rule of law dictates that the office be cleansed of all the ills that have plagued it for the past few years,” Justice Mbuyiseli Madlanga said.

In response Ramaphosa said: “And we’re hoping that the appointee will be a person who will not be captured. The new NDPP must be independent. We want them to be as slippery from the hands of captors as possible because they have an important role to play.”

Executive Director of Corruption Watch, David Lewis argued that there needed to be a review of the process governing key appointments in the NPA in Chapter 9 institutions and in the boards of state-owned enterprises. “What these institutions have in common is the requirement for unimpeachable integrity, for the ability to resist the destructive influence of narrow political interests and money,” Lewis said.

But Freedom Under Law’s Nicole Fritz said that while Abrahams’ retirement was “not a bad thing” having people just leaving office without being subjected to disciplinary processes frustrated justice.

“It is a good thing that he is no longer in the National Prosecuting Authority, but that retirement also ends any possible processes within the NPA for Shaun and that is unfortunate because it is a failed opportunity for accountability,” Fritz said.

Lawson Naidoo of the Council for the Advancement of South African Constitution said, “given his conduct as NDPP, his continued tenure at the NPA would obviously be untenable”. Ironically, it was Abrahams who revived Zuma’s corruption trial, when he turned down a request by the former president’s lawyers to stay his corruption matter pending resolution of issues around legal fees.

On March 16 2018, Abrahams decided to reinstate 16 charges against Zuma that include fraud‚ corruption and racketeering that relate to a R30-billion government arms deal in the late 1990s. The charges relate to 783 payments which Zuma allegedly received as a bribe to protect French arms company‚ Thales‚ from a government probe.

Accusations against Abrahams

In the course of his duty back in the court, Abrahams was accused of fabricating evidence by a witness who testified and in court as well as soldiers he was trying. Retired army Colonel, Thato Phaila, suggested that Abrahams fabricated evidence when he testified that he is not prepared to be asked questions by him “because he had been made by the very same second respondent to fabricate and distort evidence.”

Phaila is a state witness in the case and was the second to take the stand. His evidence prompted the Mahao murder suspects to mount an application arguing that the evidence was being manipulated evidence to ensure that they jailed. They asked the court to order that Abrahams be removed as a prosecutor but were dismissed. Justice Hungwe dismissed the application in its entirety but has not availed reasons for his decision to date.

The soldiers had argued that they would not receive a fair trial should Abrahams continue to lead prosecution in their case. In their court papers, they stated that Phaila testified that even investigators can attest to the fact that evidence had now been fabricated.

“He testified that his written testimony was fabricated by the second respondent (Advocate Abrahams) who was consulting him with the first respondent (DPP) and third respondent (Advocate Nku).