On 22 October 2007 Vusi Pikoli’s lawyers wrote a letter to Adv Menzi Simelani, then Director General in the Department of Justice. The letter stated, inter alia:

May we please have copies of all communications and other documents relating the investigation and prosecution of Mr Selebi  which you or your Department may have sent to or received from the president or anyone in the Presidency at any time since 15 September….

This request seems pretty clear. Any half-way honest person would have understood what it meant. It must be conceded that a careless or overworked person might not have provided all the documents as requested because of an oversight or negligence.

A dishonest person, on the other hand, would have deliberately chosen not to provide all the documents as requested or would have followed instructions from his boss to be dishonest and to lie. Unless something far more sinister is at work here, Adv Simelane’s failure to produce this letter – a failure curiously not addressed by Radebe at all – suggests that he is a man who will deliberately try to mislead legal opponents by hiding information lawfully requested by them in order to protect the President.

During cross examination Simelane first conceded that the letter allegedly written by thenPresident Mbeki falls squarely within the ambit of documents requested. Yet Simelane wrote back after the request mentioned above was received and stated as follows:

We are not in posession of any documents relating to the investigation of the National Commissioner of Police, save for reports prepared by your client [Pikoli].

When first asked by Trengove why the letter was not produced Simelane said:

Well, I wasn’t informed about the letter, I became aware of the letter much later.

But later Simelane conceded that he was aware of the letter, which means his first statement was not truthful. Although he had not read it, Simelane claimed, he knew the President had sent a letter to the Minister. It was this very letter which led to the writing of another letter by Simelane which was later signed by the Minister (ordering Pikoli to stop the arrest of Selebi).  Yet he did not provide Pikoli’s lawyers with the letter as requested. Worse, he stated that there was no such documents in their possession.

When confronted about this, Simelane again changed his story and said that he did not think the letter by the President, requesting more information on the Selebi matter, related in any way to the investigation against Mr Selebi. This is unfortunately not a line of argument that could reasonably be pursued without losing every shred of credibility one might have had as a witness.

Trengove then pounces:

Trengove: You said: we have no such documents in our possession. And I want to know who decided to tell that lie. You or the Minister?

Later Simelane contradicts himself yet again and tells another wopper when he says:

No, we didn’t, we didn’t deny that the letter was there.

This is of course not correct. Simelane had written to Pikoli’s lawyers denying that there were any documents relating to the Selebi investigation in the posession of the Department. Yet the President’s letter – which he admitted he was aware of – dealt directly with the Selebi investigation. With Adv Trengove we should ask: Did Simelane decided to lie of his own accord or was he instructed to lie by the Minister, the President or any legal advisor of the President?

What makes this so curious is that the letter allegedly written by then President Mbeki to the Minister of Justice one day before the Minister of Justice signed a letter drafted by Simelane instructing Pikoli not to proceed with the arrest of Selebi does not contain the smoking gun evidence Pikoli had hoped for. The content of the Ministers letter, which contained the unlawful instruction to Pikoli not to proceed with the arrest of Selebi, seems to go much further than the request contained in Mbeki’s letter, which merely asked for more information on the Selebi case (information, we now know, which the President had already been given by Pikoli).

A conspiracy theory is doing the rounds that Simelane had not produced the letter because it contained an illegal instruction from then President Mbeki to have the arrest of Selebi stopped. According to this theory, another letter was conjured up after the fact when it became clear that it would have had to be produced to the Ginwala inquiry.

I am not sure I buy this. Surely Mbeki and his advisers would not have deliberately concocted fake evidence to escape responsibility for their unlawful actions? A more plausible explanation is that Simelane decided to lie about the existence of the letter because it showed that the suspension of Pikoli was directly related to the pending arrest of Selebi. At the time, President Mbeki had denied that the suspension of Pikoli had anything to do with the impending arrest of Selebi and this letter provided proof that Mbeki’s claim could not be sustained.

To protect the person who had appointed him, Simelane then misled Pikoli and the Inquiry by not producing the letter written by the President – despite being requested to do so and despite having a legal duty to do so.

Minister Radebe failed to explain why this action by Simelane does not warrant disciplinary action against Simelane. This is because there is no plausible explanation for this failure to produce evidence which Simelane had a legal duty to hand over.

This sorry tale provides more proof that Simelane is a man who is so loyal to his political bosses that he would try to hide the existence of evidence that would make his boss look bad. No wonder he was purportedly appointed by President Jacob Zuma as National Director of Public Prosecutions. With such a guy heading the NPA, President Zuma clearly has nothing to worry about on the legal front – even if the decision to drop charges against him is declared invalid.

We may observe a moment of silence for the hundreds of thousands of people who have already died of AIDS related illnesses in South Africa. Many of them died needlessly because of the greed of pharmaceutical companies, the criminal neglect of some of our public health system officials and the madness that was then President Thabo Mbeki’s flirtation with AIDS denialism. With some notable exceptions, one must also decry the lack of leadership from many politicians across political party lines who through their actions, utterances or silence have contributed to the stigma and shame that still attach to HIV and prevent many South Africans from getting tested and treated for this manageable disease.

Ten years ago then President Thabo Mbeki first suggested that AIDS drugs could pose “a danger to health” in a speech to Parliament, setting the stage for the denialism and obfuscation to follow. This year, for the first time in ten years, World Aids day is not the depressing event filled with anger and frustration at all the wasted lives that we have become accustomed to over the previous ten years. Last month President Jacob Zuma made a ringing speech in which he rejected the absurdities of the Mbeki era and stated:

South Africans must know that they are at risk and must take informed decisions to reduce their vulnerability to infection or, if infected, to slow the advance of the disease. Most importantly, all South Africans need to know their H.I.V. status, and be informed of the treatment options available to them.

What we tend to forget is that we would not be where we are today if it was not for the Treatment Action Campaign (TAC) and for the Constitutional Court. The TAC took on Mbeki and his government at the height of Mbeki’s power. It played a brilliant and strategically astute role in challenging the government’s confusing, intellectually arrogant and destructive, and often heartless policies and actions on HIV.

Making use of a combination of political mobilisation and legal action, the TAC won a famous victory in the Constitutional Court. This forced the then Minister of Health to swallow her words – uttered live on the TV news – that she would refuse to obey a Constitutional Court order to provide ARV’s to HIV pregnant mothers to save their new born babies from HIV infection.

The Constitutional Court, arguably going further than it had in the Grootboom case, found that the government had acted unreasonably by restricting the provision of ARV’s to HIV pregnant mothers to a few pilot sites. The Court rejected all the arguments presented on behalf of the Minister (the same arguments which President Mbeki also peddled) regarding the efficacy and dangers of ARV’s and found that the government action was so unreasonable that it was acting unconstitutionally by preventing poor women from accessing life saving ARV’s  for their babies.

Shortly after this judgment was handed down I attended a workshop with members of the Department of Health to discuss the possibility of providing wider access to ARV’s to South Africans living with HIV. Two things struck me at that meeting: all the officials were terrified of Tshabalala-Msimang and all the officials were terrified that their HIV policies will be successfully challenged in the Constitutional Court.

Shortly afterwards the government announced that it would progressively roll our ARV’s to all who needed it. Without the TAC and without the potent judgment of the Constitutional Court, this would not have happened and many more people may have died needlessly. Some lawyers dismiss the social and economic rights (including the right of access to health care) enshrined in the Bill of Rights on the basis that the do not mean much and has little effect. But they forget that these rights have an effect not only in courts but also more broadly.

The TAC understood from the start that the right of access to health care in the Bill of Rights provided them with a tool through which it could mobilise civil society and the ANC alliance partners against Mbeki and his allies. They understood that social and economic rights battles should be waged strategically, both inside courtrooms and on the streets.

Much still has to be done to fix the HIV/AIDS mess. Many poor people and people in our prisons still die because they have no access to ARV’s. Some government officials still peddle the utterly counter productive ABC message of prevention instead of focusing on condom use and the difficulties experienced in our patriarchal culture by many vulnerable women in trying to protect themselves from infection. But at least something is being done.

Meanwhile, I can only hope that former President Thabo Mbeki (for once) takes advice from Zwelenzima Vavi and apologises for the way in which his government dealt with HIV. Who knows, an apology might even enhance his reputation, which must surely be at rock bottom in South Africa at the moment.

This settlement to a large extent vindicates Pikoli and others who have maintained that he was fired on spurious grounds. Pikoli was obviously suspended by then President Thabo Mbeki because he failed to follow the unlawful instructions from then Minister of Justice Brigitte Mbandla, who took a few minutes out ohe her busy tea drinking schedule, to order him not to go ahead with the arrest of Jackie Selebi.

Mbeki and Mbandla – as became clear at the Ginwala Inquiry – had a strange view of the constitutional requirement that the NDPP must act without fear, favour or prejudice and wrongly thought that the government had the power to order the NDPP to conduct specific investigations and arrests in a particular manner – something forbidden by the Constitution and not authorised by the NPA Act.

Then President Motlanthe fired Pikoli because – as Pikoli made clear during his testimony in the Selebi trial – he was not willing to be party to the unlawful dropping of charges against Jacob Zuma. Unlike Mokothedi Mpshe, who was somehow ”persuaded” to drop charges against Zuma despite believing that the state has a winnable case against our President, Pikoli had shown during the Selebi standoff with Mbeki that he is a man of principle. 

We will now have to see if Mpshe will be “rewarded” for dropping the charges against the President by being appointed as the permanent head of the NPA or whether President Zuma will appoint one of his other friends to that position. If I was President Zuma I would think twice about appointing Mpshe because he stuffed up the dropping of the charges by plagarising an overturned Hong Kong decision and providing “reasons” for his decision that were so laughable and absent any legal reasoning that even Pinocchio would have been embarrassed to have been associated with the decision.

On the other hand, the case challenging this seemingly unlawful decision by Mpshe is still going ahead, so President Zuma has a vested interest in keeping Mpshe on board and happy and not to upset the man who has done him this very big favour. If Mpshe is not appointed and he throws his toys out of the cot and reveals what happened during the dropping of the charges, it might just reflects very badly on our President, Hulley and others who was party to this obvious political deal, which had very little to do with the law.

But Mpshe does not seem like a strong-willed man who would ever make any waves, so it might well be that President Zuma will decide not appoint Mpshe but will rather appoint a trusted ally to the position of the NDPP.  After all, he will have to be on the safe side in case the challenge to the dropping of charges is successful. Zuma would then need a trusted friend as head of the NDPP to ensure that the charges are made to go away once again.

There is one thing we all know and that that Zuma cannot afford to go to court because there is a wealth of evidence amassed against him and if he has to stand trial it will ruin his reputation. There is also a strong likelihood that he will be convicted and it would be rather awakward to have a President convicted of fraud and corruption.  (Even those who claim that there was some kind of a conspiracy against Zuma knows deep down that our President took money from a crook, did favours for that crook and then lied about it – that is why they have to shout so loudly about the conspiracy in order to take our minds off the elephant in the room.)

Of course we are all feeling a bit awkward to talk about this simple but rather inconvenient fact as Jacob Zuma is now our President and many of us sort of like him (even if he seems indecisive and weak and not the sharpest tool in the shed – compared to Mbeki, at least). It’s a bit like dealing with that alcoholic aunt or that brother in jail: we remember them fondly at family events, but we studiously avoid mentioning THAT.

After all, we feel somehow implicated because it is our family and we are justifying their destructive or illegal behaviour by our support. So better not talk about it in case we have to confront our own complicity in the family scandal.

Thus he would write a brilliant analysis of the ways in which a kind of Afro-pessimism and racism influenced the discourse in South Africa on crime and corruption, and how such discourses reflected the fears and prejudices of “some among us”, before abusing this insight to make completely laughable claims to defend himself and his government from the valid criticism leveled against it.

He would point out, correctly in my view, that fears about crime was entwined with some people’s fears about a black run government and that perceptions about crime could not be divorced from perceptions about the so called criminality of black men. When many white people spoke about crime this was a way for them to express their racism and fears about black people in a more “acceptable” manner. But then he would go on a tangent and claim that crime was not really a problem at all in our country and that complaints about crime itself was just a matter of perception not linked to any “objective reality”: who would ever be robbed walking to the SABC studios he once mocked, just a few days before a journalist from CNN and his wife were robbed at gunpoint outside the SABC studios in Auckland Park!

He would point out, once again correctly in my view, that negative, deeply embedded, but often unspoken assumptions about Africa and how Africans are “naturally” corrupt clouded the vision of “some among us” about the prevalence of corruption in South Africa. But then he would rail against the “fishers of corrupt men” in the media and deny that there was a corruption problem in South Africa at all. After all, the “objective reality” according to Thabo Mbeki was that there was no arms deal corruption, that municipal officials (all disciplined cadres of the ANC) almost never stole public funds, that officials of the Department of Home Affairs were almost all imbued with the spirit of Batho Pele.

He also pointed out, correctly in my view, that Pharmaceutical companies are often unethical and exploitative and care more about profits than about the health of people in poor nations. But then he would madly veer off into cloud kookoo land and question the link between HIV and AIDS (”A virus cannot cause a syndrome”, “HIV is a CIA plot”) to try and justify the decisions of the government not to provide HIV positive mothers with the medicine required to save their babies from HIV (in other words, a decision to let those babies die).

Now our former President is back to his old ways. In an interview with the Sunday Independent he rails against the Nicholson judgment and points out (correctly in my view) that Nicholson did not base his judgment on proven facts according to appropriate the rules of evidence:

Mbeki explained his understanding of the meaning of Nicholson’s judgment. He felt that Nicholson “really sought to impugn our integrity”, and presented Mbeki and his cabinet as “dishonest people” who “for whatever reason want to intervene in ways that are illegal and unconstitutional”.

He said he, like his cabinet colleagues, took the oath of office seriously and the oath was, for him, not just a formality. “For somebody to pop up from somewhere with absolutely no basis … to come to a conclusion that these are bad people, dishonest people, acted in violation of their oath, this and that and the other; that was bad,” he said.

Well, although Nicholson clearly got it wrong by basing his decision on very flimsy evidence, this does not demonstrate that Mbeki and members of his cabinet did not act dishonestly. We all know that Mbeki and his Minister of Justice had a rather peculiar idea about the independence of the National Prosecuting Authority (NPA) and that they tried to interfere with his work in order to stop the arrest of Jackie Selebi, that an unlawful order was given by his Minister to Vusi Pikoli not to arrest Selebi, that Pikoli was suspended because he refused to be intimidated by the President.

We all know that the Minister in the Presidency (old Essops Fables) shamelessly intimidated members of Parliament to try and stop them from launching a proper investigation into the arms deal because we have read Andrew Feinstein’s first hand account of this intimidation. (If there was nothing to hide, why go to such extraordinary lengths to hide that nothing?) We all know that former President Mandela was humiliated and ridiculed by Mbeki cabinet members because he dared to speak up about Mbeki’s HIV and AIDS folly. We all know that there was arms deal corruption (some of it even leading to prosecution). We all know that Shaik and Zuma were investigated while others in the ANC and in government, who were not threatening Mbeki’s political position (like Zuma was), and who clearly had much to explain, were left alone.

Some will say: well we do not know this at all because it was never proven in a court of law. Bring the evidence! Until you have satisfied US that we are indeed crooks, we are not crooks! Prove it! Well, a court has never found that the apartheid state supported hit squads and at the time the government denied involvement in such hits squads and also demanded from those who pointed to all the available evidence to “bring the evidence” while at the same time doing everything in its power to discredit those with inside information and personal experience of such nefarious activities. Sometimes the truth does not wait for a court of law.

Often a body of evidence – both circumstantial evidence and hard evidence – emerges over time. Even where someone is not prosecuted, any reasonably well-informed person will be justified to make conclusions based on that evidence. For example, no one was ever prosecuted in the United States for fabricating evidence of weapons of mass destruction in Iraq and for deceiving the public about the reasons for going into Iraq. But there is such a wealth of evidence supporting the fact of fabrication that only a few die-hard George Bush supporters will now claim that Bush and his cronies were not thoroughly rotten and dishonest about the reasons for going to war with Iraq (and much else besides).

The same is the case surrounding the arms deal, corruption and political interference in decisions to investigate and prosecute (or NOT to investigate and prosecute) some well-connected ANC types for arms deal and other forms of corruption. It might not form part of the “objective reality” in which President Thabo Mbeki lives, but it does not mean that it is not so.

Following the announcement that Radebe-Khumalo and the entire executive committee has been axed, jubilant crowds gathered outside the city hall. Sakhile residents sang, blew vuvuzelas and popped champagne bottles in celebration. “Bye bye, Juliette Radebe-Khumalo. We have told you it has always been coming,” they sang. Residents had called for Radebe-Khumalo’s head months ago, saying a municipal finance report showed R30-million in municipal funds that could not be accounted for.

The one person who might feel aggrieved is Radebe-Khumalo. How could she have known that the disappearance of a paltry R30-million would prompt the ANC to act against her? It is not as if this is a common occurrence. If she had followed the ten year saga around the arms deal scandal – also fresh in the news (again!) – she might have been forgiven for thinking that the alleged theft of R30 million would not raise an eyebrow.

It seems to me the kind of unhappiness expressed by the Sakhile residents and by residents elsewhere in South Africa about poor service delivery resulting from nepotism and corruption can at least partly be blamed on the arms deal and the cover up of the corruption associated with the arms deal. Few have been left untainted by the arms deal scandal – including the NPA, former President Thabo Mbeki, current President Jacob Zuma, Trevor Manuel, Jeff Radebe, and Mosieu Lekota.  

The arms deal and the way allegations about corruption in the arms deal was dealt with (or not dealt with), established the template later followed by many ANC politicians who thought that if Manuel, Modise, Lekota and Mbeki would not be held accountable, they also would escape any censure for nepotism and corruption. We are, after all, all innocent until proven guilty. There are many good people in the ANC, but only a few of them spoke up when it became clear that the arms deal was riddled with corruption. Many others actively supported the cover up. The question should be asked why they did not follow their conscience but remained sthum.

Back in 2001 then President Mbeki set the ball rolling when he announced that a formal legal opinion by the Attorney-General of the Western Cape, Adv Frank Kahn SC and the SIU’s own senior legal advisor, Adv Jan Lubbe SC, confirmed that no prima facie evidence of unlawful  conducted existed concerning the Arms Deal. The truth was exactly the opposite as the two gentlemen had stated in their report to Mbeki:

[T]here are sufficient grounds in terms of the Special Investigating Units and Special Tribunals Act No 74 of 1996, for a special investigating unit to conduct an investigation, and, in our opinion, such an investigation is warranted.

And yesterday the DA released a damning report in which it provides further convincing evidence that the joint investigation arms deal report was doctored. Comparing a draft report with the final report, researchers demonstrate that:

• Crucial ‘Overall Conclusions’ reached by the Auditor-General are entirely omitted from the final version of the Report. Notable in this instance is the conclusion that “there were significant flaws in the selection of BAe/SAAB as the preferred bidder for the LIFT & ALFA programme”. This is omitted from the final Report. Following this page, the editor inserts a further note – that certain ‘additions’ need to be made to the overall conclusion. This includes the conclusion that “the joint investigation team found no evidence of impropriety, fraud or corruption by Cabinet [or] Government” and that “government co-operated with the investigation teams and assisted them with their endeavours”.
• Similar sizeable alterations on the Auditor-General’s findings regarding the ALFA/LIFT contracts are made later on page 57. Here, a passage reads “[t]here is an indication that the former Minister of Defence [Joe Modise] could have influenced the decisions of role players in the process”. Examples are then provided of where this is believed to have happened. This finding is entirely excluded from the final Report. Even the title of this section is earmarked for overhaul. The Auditor-General titles the section “Decisions of the Minister of Defence that could have influenced the process”, which is replaced by “The visionary approach of the former Minister of Defence”:
• Another crucial section that does not make it: the Auditor-General’s conclusion that “[d]uring the investigation is became apparent that … preference was given to BAe/SAAB”:
• A section that concludes that apparently preferential treatment given to some ALFA bidders was “not in accordance with good procurement practice” is scrapped. The editor notes that “No evidence of any preference awarded to any of the bidders during these visits were (sic) obtained”. This, of course, is not the point that the Auditor-General’s report was attempting to make. Further down, another passage concluding “fundamental non-compliance with good procurement practices” is also removed. Once more, the editor notes “No evidence” – though again this is not his/her call to make. On the page following this one, another section concluding further “noncompliance with good procurement practice” is also removed.
• All of the key conclusions drawn by the Auditor-General in one section of the report are removed. The A-G concludes that “deviations from the approval process occurred” and “good procurement practices were lacking”. These failings included “apparent attempts at exertion of influence towards certain subcontractors” and “amendment of the overall formula to determine the preferred bidder”. These crucial findings are not only omitted from the conclusions section of the chapter in the final Report dealing with submarine contracts, but in their place precisely the opposite conclusions are substituted.
• Throughout the section on submarine contracts, various other changes are made. For instance, the Auditor-General notes that because no minutes of a particular workshop were maintained, there is no evidence that the final NIP value system scores were agreed to by all members present – and that there was the possibility that some individuals may have influenced scores awarded. This is removed, and
  does not appear in the final Report.
• A section detailing problems experienced dealing with government officials is marked for deletion. The single sentence that appears earmarked to survive the cut is altered such that it reads “[the two attorneys] co-operated with investigating teams and assisted them ably”. Further down, another section on difficulties experienced with state attorneys is cut.
• At the end of the document the editor of the document makes notes on a copy of the Public Protector Draft Document (Part A of the JIR) under the headings “Trevor Manuel” and “President”. It appears s/he is instructed by Manuel to emphasise the fact that government cooperated with the enquiry (point 8), and that government was not reckless (point 4). The president’s concerns appear to include “country emerging” (point 1); and “Defend integrity of inv. (investigating) agencies” (point 2). This could be problematic if what was implied was that government needed to be protected. A further section headed “Lekota” follows. This is almost certainly, then, ‘feedback’ received from Mbeki, Manuel and Lekota at a meeting in October 2001.

If one reads this report, it is very difficult not to conclude that the final arms deal report was a complete white-wash and that it was fundamentally changed after interference by Mbeki, Manuel and Lekota. Maybe now that many of those involved in the white-wash are out in the political cold winds and the new Zuma administration is trying to show that it is different from the Mbeki lot, the ANC will finally lance this boil and will come clean about the obvious corruption linked to the arms deal and the blatant cover up of that corruption.

If they do that many of us ordinary citizens will see the sacking of mayor Radebe-Khumalo as only the start of a wonderful new beginning. We will praise the ANC for returning to the values it held so dearly before taking power and before some of its members were corrupted by the old business elites – to the detriment of the poor and downtrodden in whose name it fought the struggle.

We do not know yet whether former Police Commissioner, Jackie Selebi, is guilty of corruption and defeating the ends of justice as alleged by the State. The State alleges that Selebi made R1.2-million from corrupt relationships with druglord Glen Agliotti, slain mining magnate Brett Kebble and former Hyundai boss Billy Rautenbach. We also do not know whether the claims by Selebi that both Bulelani Ngcuka and Vusi Pikoli pursued the case against him because they themselves are corrupt is true. That is for a court to decide.

However, the claim by Selebi that he was being prosecuted after discovering that Pikoli and his predecessor, Bulelani Ngcuka, had improper business dealings with dodgy businessmen, does (at least at first glance) seem curious from a legal perspective. Selebi made these allegations not in an attempt to have the case against him thrown out. In the light of the SCA judgment in the Zuma case that a prosecution does not become unlawful “merely” because charges were brought for an ulterior purpose – as long as the State brought the charges in order to secure a criminal conviction – this is a wise move.

But why is Selebi making these claims as part of his defence? Is he making a legal argument or is he rather playing a political game in order to garner sympathy by attacking two men who are rather unpopular with the crowd currently in charge of the country? It is difficult to say. 

In order to secure a conviction in the corruption case against Selebi, the State will have to convince the court beyond reasonable doubt that Selebi received the more than R1.2 million from the dodgy “businessmen”. It will then have to prove that Selebi did corrupt favours for these men and that there was a link between the payments and the favours, thus establishing Selebi’s intention to be part of the corruption.

In order to try and secure a conviction the state will call a very long list of witnesses. (See here and here.) The list does not include the name of Buleleni Ngcuka, but does include the name of Vusi Pikoli. One imagines that in order to stave off conviction Selebi will have to discredit a fair number of the witnesses that will come to testify about the R1.2 million allegedly received by Selebi and about the favours allegedly done by Selebi in return.

If the State has strong evidence – including documentary evidence – of the money allegedly received from the various criminals and underworld figures, then the case will probably turn on whether these payments could be linked to favours done by Selebi. The crux of such evidence may well have to be provided by witnesses who have concluded plea bargains with either Ngcuka or Pikoli.

I have no inside knowledge of the strategy employed by the defense, but from the available evidence it seems plausible that Selebi is attacking the credibility of Ngcuka and Pikoli not so much in an attempt merely to discredit them, but rather to try and undermine the credibility of the evidence provided by key witnesses who had concluded plea bargains with the state, including Glen Agliotti and Billy Rautenbach who will have first hand evidence of any favours  done by Selebi – if indeed favours were done.

The Selebi defense is therefore perhaps more astute than it seems. If the plea bargains can be attacked and the credibility of the witnesses who entered into such plea bargains can be destroyed, then Selebi might have a much better chance of being acquitted.

(As an aside, I am rather disappointed by Selebi for employing Advocate Jaap Cilliers SC to defend him. This shows a shocking disregard for the need to transform the legal system. How can talented black lawyers gain the necessary experience required to be elevated to the bench if criminal defendents like Selebi fail to employ them and choose instead to make use of the services of pale males. Is Selebi perhaps a victim of internalised racism and does he perhaps wrongly assume that a senior white man would provide him with a better defense than any of the many talented but less experienced black counterparts?  I am sure Advocates for Transformation and the Black Lawyers Association will shortly issue angry statements condemning Selebi for his racism. Besides, was Kemp J kemp to0 busy to take the case? Oops, for a moment there I forgot that President Jacob Zuma’s lawyer was also white.)

In any case, time will tell whether this strategy will work. Personally I am so confused by all the allegations and counter allegations in this case, that I have no clue which way it will go and whether either Selebi or the NPA will emerge vindicated or whether Selebi will manage to make his allegations stick.

On the one hand that great legal expert, Thabo Mbeki, claimed that he had not seen any credible evidence of any wrongdoing by Selebi and therefore could not suspend him – even after being fully briefed by Pikoli about the evidence against Selebi gathered by the State. On the other, a panel of eminent legal experts (admittedly perhaps not as well qualified as Mbeki in matters of criminality) who was asked to looked at the evidence by Mokotedhi Mpshe, concluded that there was a prima facie case against Selebi and that he should be prosecuted.  

Move over 7de Laan and Generations. The Selebi show is coming to town.

The judgment in Pikoli v President of the RSA and Others therefore does not really make new law, although it does confirm that Pikoli does have a prima facie case and neatly sets out the requirements for an interim interdict. So here, dear readers, follows a little lesson in the law of interim interdicts.

The aim of an interim interdict is to preserve the status quo pending the final determination of the rights of the parties to pending litigation. As the court in this case reminds us, when considering whether to grant or refuse an interim interdict, the court seeks to protect the integrity of the proceedings in the main case. This case therefore does not involve a final determination of the parties’ rights and Pikoli may either win or lose his case when it is heard in November.

The first requirement for the granting of an interim interdict is that the applicant had to show that he or she has at least a prima facie right to the relief he or she seeks in the main application. In this case, the court assumed that the issue in the main application would turn on the  principle of legality. Did the President act in accordance with section 12(6)(a)(iv) of the NPA Act when he relieved Pikoli from office? That section states that a NDPP can only be removed from office, inter alia, “on account thereof that he or she is no longer a fit and proper person to hold the office concerned”. If Pikoli is indeed still fit and proper, the firing would have breached the principle of legality and would have been unlawful and thus void.

The problem for the President in this case is that according to Dr Ginwala’s report, the government had failed to substantiate any of the grounds upon which they had contended that Pikoli was no longer fit and proper to hold office. Dr Ginwala recommended that Pikoli “be restored to the office of NDPP”.

Despite her positive recommendation, Dr Ginwala in her report made certain adverse findings against Pikoli. Then President Motlanthe concluded that Pikoli’s conduct in relation to national security issues indicates “a clear lack of insight, which by further necessary implication rendered him a person not fit and proper to hold the office of NDPP”. Pikoli disputes the factual basis for this conclusion and the case in November will turn on this issue.

As the court correctly found, if Dr Ginwala’s adverse findings were incorrect, the basis for the President’s conclusion that the applicant is not a fit and proper person falls away. As Pikoli has put forward facts that, on a prima facie basis show that the factual findings were indeed not correct the first requirement for the granting of an interim interdict was met.

Interestingly the judgment is not much impressed with the argument put up on behalf of the President that the President has a constitutional duty to appoint the NDPP and hence, for the court now to interdict him from doing so, will be an unnecessary breach of the principle of the separation of powers. This was an unfortunate argument to have made as it may create the impression that the President does not appreciate his duty always to act in accordance with the law and the Constitution.

The firing of Pikoli was a purported exercise of public power by the President and if this was not authorised by law it would be invalid from the outset. The Court points out that a declaration that the President did not act in terms of the law would merely be a “descriptive of a pre-existing state of affairs”. This means if Pikoli wins his case he will automatically be reinstated unless the courts decides to modify the remedy in any way.

As the law requires all of us to respect the pending legal process and, as far as is reasonably possible, to limit the practical consequences of the challenged action, “in appropriate circumstances … an authority should … halt its actions when it is aware that review proceedings are to be instituted against it. Failure to do so may render the official concerned liable for contempt of court” The separation of powers argument therefore did not hold water as allowing the President now to appoint a new NDPP might ultimately turn out, if Pikoli is successful, to have countenanced the unlawful exercise of public power and it is the task of courts to prevent that from happening.

The second requirement for the granting of an interim interdict is that the applicant has to show that he or she has a reasonable apprehension that he or she will suffer irreparable harm if the interdict is not granted. In this case it was not difficult for the court to find that Pkoli may well suffer such irreparable harm, as a new NDPP would then be in place and it might well convince a court not to order the reinstatement of Pikoli thus severely limiting the remedies available to him.

The third requirement for an interim interdict is that the balance of convenience must favour the granting of the interim interdict. The court had no problem in finding that in this case the balance of convenience clearly favours Pikoli, especially because there was no evidence that the acting appointment that has been in place for nearly two years has caused any practical difficulties.

The fourth requirement for an interim interdict is that the applicant must show that he has no alternative remedy. As conduct inconsistent with the Constitution is void from its inception, Pikoli will automatically be reinstated if the main application succeeds, unless the court makes an order to limit the retrospective effect of its declaration. According to the court, the only effective way to protect the applicant’s right to reinstatement if he succeeds is to grant the interim interdict.

Herewith endeth my little sermon on interim interdicts.

In conclusion, it is clear that Pikoli has a strong case going into his court battle in November because the reasons given for his firing had absolutely nothing to do with the reasons given for his suspension or the reasons given to the Ginwala Inquiry for why Pikoli was supposedly not a fit and proper person. When one fires a person and change one’s story for why one has fired that person several times, it becomes difficult to show that the reasons finally given were in fact true.

Because the Presidency lied about the true reasons for Pikoli’s firing, it is difficult not to conclude that he was not fired because he was no longer a fit and proper person but was indeed fired exactly BECAUSE he was a fit and proper person.

President Thabo Mbeki is a master at this. He really is not someone with a great fondness for honesty and truth.

Earlier this week Mbeki denied ever having said that HIV does not cause AIDS. A “(im)plausible denial” of the generally accepted interpretation of his words, if ever there was one. At the time Mbeki had said:

“Does HIV cause AIDS? Can a virus cause a syndrome? How? It can’t, because a syndrome is a group of diseases resulting from acquired immune deficiency.”

And in an interview with Time Magazine on September 4 2000, Mbeki stated that, “the notion that immune deficiency [AIDS] is only acquired from a single virus [HIV] cannot be sustained.” When asked whether he was prepared to “acknowledge that there is a link between HIV and AIDS?” he replied:

This is precisely where the problem starts. No, I am saying that you cannot attribute immune deficiency solely and exclusively to a virus.

So, in a dry technical sense Mbeki is not peddling a “deliberate falsehood” when he says he never said the words: “HIV does not cause Aids”. Plausible deniability. Problem is, he questioned the link between HIV and AIDS and said a virus cannot cause a syndrome and this was widely understood by those spineless cabinet Ministers (who refused at the time to state that HIV causes AIDS), state officials and ordinary people to mean that Mbeki did not believe that HIV caused AIDS. And Mbeki, who at any time during the controversy could have corrected this impression, failed to do so.

This is like asking whether apartheid was really bad for South Africa and had really caused the suffering of millions of South Africans, then when asked directly whether I thought apartheid was bad for South Africa and had caused misery to say: “no, there are many reasons for people’s misery”.  Then years later denying that I had ever suggested that apartheid caused suffering.

Now, hundreds of thousands of deaths later, Mbeki wants to rewrite history. Why take responsibility for your words when they come back to bite you? That would require courage and honesty – two things our former President seems to lack.

Another example of this lack of basic honesty was revealed in his affidavit in support of his suspension of Vusi Pikoli. In the affidavit Mbeki stated:

I had to confer with the NSC to establish the risk posed by this decision [not to provide more time to arrest Selebi] and considered ways of minimising any potential threat to national security…. All I can say is that following such discussion [with the NSC] the advice I received was to suspend the applicant from office with immediate effect.

At the time it was widely reported that Mbeki had said that he had suspended Pikoli on the advice of the NSC. Mbeki never corrected this. Now the Presidency has issued a statement saying:

Former President Thabo Mbeki did not say he was advised by the National Security Council to suspend the NDPP. All he said was that he conferred with the National Security Council.

So, at best Mbeki was misleading the court and the public by his innitial statement and then – more importantly, by his silence afterward. At worst he was committing perjury.

Would you buy a second hand car from this man? I won’t.

In a remarkable affidavit submitted to the North Gauteng High Court by Mbeki in support of Pikoli’s purported firing, the former President tries to wiggle out of the corner he has painted himself into on this matter.

After all, if Pikoli was really suspended and then purportedly fired for dismissing Mbeki’s request to wait two weeks before arresting former police commissioner Jackie Selebi, thereby disregarding national security concerns, surely this should have featured in the letter that Mabandla wrote to Pikoli two days before his suspension?  And again, in the letter Pikoli received from Mbeki, suspending him? Perplexingly, this accusation was also missing from the terms of reference of the Ginwala Enquiry  itself.

No wonder Mbeki’s affidavit is so opaque and – dare I say – misleading. Either Mbeki and his office lied to the nation when Pikoli was suspended or he is lying in his affidavit submitted to the court. But he seems less adept at this kind of fudging of the truth than Bill Clinton ever was so the result is rather embarrassing.

First, Mbeki’s suggests that in his letter in which he suspended Pikoli he mentioned the threat posed by some crimes to national security “and expressed a concern regarding the applicant’s exercise of his discretion to prosecute offenders and the potential effect of such exercise on national security”. Given the fact that Pikoli was ostensibly fired because he failed to take into account national security issues when he obtained a warrant for Jackie Selebi’s arrest, this might suggest (admittedly without saying so directly) that the President’s letter had anything to do with the Jackie Selebi matter. It clearly did not. The “national security” concerns expressed in the letter related to plea bargains and had nothing to to with Selebi.

Second, Mbeki states that section 179(6) of the Constitution “stipulates that the Minister of Justice and Constitutional Development… must ensure that the Prosecuting Authority serves the public interest“. Unfortunately there is no such provision in the Constitution. Nor is there any case law interpreting this provision in the manner suggested in the letter.

Third, Mbeki claims that he did not mention the national security concerns relating to the arrest of Jackie Selebi because an Enquiry would be held in which this question could be ventilated. This does not seem accurate, as the terms of reference of the Ginwala Enquiry refers to “the threat posed by organised crime” to the national security of South Africa” and does not mention any threat to national security posed by the arrest of Selebi. So, unless Mbeki is of the opinion that the Police itself is an organised crime ring, it cannot be true that the arrest of Selebi was something he envisaged would be dealt with by the Ginwala Enquiry.

Moreover, when the government presented its case against Pikoli at the Ginwala Enquiry it failed to mention any – I repeat ANY – concern that Pikoli’s actions to obtain an arrest warrant for Selebi was in any way threatening national security. Claiming now that such concerns was at the heart of the suspension of Pikoli can only mean one of two things: Mbeki and his underlings lied until now about the real reasons for Pikoli’s suspension or they are lying now.

Fourth, Mbeki denies that Pikoli regularly reported to him on progress in the Selebi investigation. According to Mbeki, where meetings were held with the NDPP it was to “facilitate access to information held by the SAPS”. This denial seems difficult to sustain. In an affidavit provided by Acting Head of the NDPP, Mokotedi Mpshe, Mpshe claims that the NDPP had met with the Minister and Mbeki on ten different occasions to inform them about the Jackie Selebi matter. Moreover in a fourteen page letter written to Mbeki on 7 May 2007 by Pikoli, the President is extensively informed about the Jackie Selebi investigation. Anyone who reads this letter will have difficulty in agreeing with Mbeki’s contention that he was not informed about the investigation. But I suppose it depends on what your definition of “regularly” is.

Interesting, Mbeki now claims that when he suspended Pikoli he “did not purport to place verbally before [Pikoli] all the grounds” for his decision. This means that Mbeki is now admitting that he misled Pikoli and the public and that the grounds given to Pikoli and later communicated to the nation for the suspension were not the only reasons for his suspension. Despite claiming at the time that the suspension was due to a breakdown of the relationship between Pikoli and the Minister, Mbeki now claims there were other grounds never communicated to us and that his spokespeople lied when they denied the suspension had anything to do with the Selebi matter.

Mbeki also has to explain why he did not respond to Pikoli when he said he would give the President one week to prepare the environment for the arrest of Selebi and he does so by contradicting himself. First, he denies that he did not raise the national security issue with Pikoli when he suspended him but a few paragraphs later he states: “I fail to understand how my failure to complain directly to what I viewed as a fait accompli can be construed as a lack of concern that I was not informed of the intention to obtain the warrants.”

This does not seem to make sense and seems like an obvious contradiction. I suppose it is difficult to keep your story straight if your story keeps on changing. But I suppose it depends of what your definition of “directly” is.

This affidavit tries to argue ex post facto that Pikoli was suspended only because he obtained an arrest warrant for the National Police Commissioner. But the Presidency at the time explicitly denied that this was so. I am not sure Mbeki appreciates how poorly this admissions in his affidavit reflects on the credibility and integrity of the Presidency during his term.

The only possible conclusion one can draw from this affidavit is that – like Bill Clinton – the former President is rather economical with the truth. What we do not know is whether the lies occured when Pikoli was suspended or whether they are happening now.

Grubstreet reports that Justice Conrad Seagroatt – the man whose judgment was plagiarised by Mpshe to try and justify the indefensible – has suggested that acting National Director of Public Prosecutions, Moketedi Mpshe, was wrong to drop the charges against ANC President Jacob Zuma when he did.

When the judge had initially been contacted by the journalist Gill Moodie, Seagroatt had described Mpshe’s plagiarism of his judgment as “sloppy and undisciplined” based the schedule of extracts published on Politicsweb.co.za. However, at that stage he had not seen the full Mpshe statement itself. In a further email to Moodie, published on the Grubstreet.co.za weblog, Seagroatt made four further criticisms of the NDPP’s decision (according to Politicsweb):

Firstly, he noted that his judgment had been overturned by the Court of Final Appeal in Hong Kong. “In the light of this Mpshe should not only have given proper attribution to the passages in my judgement upon which he obviously relied, but should have explained why he relied upon them in preference to the H.K.C.F.A’s decision. There was certainly room for him to do so.”

Secondly, he stated that the facts of the case he was dealing with were not really applicable to Zuma’s situation. Mpshe’s “own statement is so limited and sketchy” Seagroatt wrote, “that I find it impossible to identify why he was relying on my judgement. In the Hong Kong case the behaviour of the prosecution which I criticised was its failure to disclose material evidence in relation to an expert witness upon whom it relied as pivotal to its case. The first “whiff” of such evidence did not emerge until the jury were considering their verdicts and I had to stop the trial at that stage – a very rare event. The C.F.A. did not disagree with that decision; in effect they approved it.”

Thirdly, and further to this point, Seagroatt notes that “What Mpshe seems to have taken as the justification for his decision was not a material aspect of the trial procedure but a decision made by some branch of the investigative process as to when and where Jacob Zuma should be charged on the basis of political considerations. That is an entirely different scenario. Many might argue that motivation in relation to timing of a charge is very different from manipulation of the evidence available.”

Finally, Seagroatt observed, that such decisions are ones best left to a judge to decide. “It is very strongly arguable that [Mpshe] should have let the trial process begin before a judge, leaving the aspect which seems to have dominated his proper role as the prosecutor (the old adage being a ‘prosecutors’ job is to prosecute) to be determined by the judge with the N.D.P.P. being entirely candid (as he should be) as to the conduct of the investigative and prosecuting agencies.”

Having noted all of this does not mean I was not very impressed with Mr Jacob Zuma’s speech after his election as President in the National Assembly. Compared to the occasional self-important and pompous blathering of Thabo Mbeki, his speech was light, witty and humble. A good start. Maybe if he does not only talk the talk but also walk the walk, over time we will learn to forget that dark cloud hanging over his head and how the National Intelligence Agency and the NPA was abused to get him off the hook.

I am holding thumbs.