It turned out that this was a bare-faced lie. The American public forgave Clinton, perhaps because he lied about a personal matter and not – like Richard Nixon before him – about serious matters of state. Or perhaps the public forgave Clinton because the US economy was booming. Despite this, Clinton’s historical legacy will always remain tainted by the telling of this blatant lie – communicated with so much conviction that even his wife (who should have known better) claimed to have believed him.

Will South Africans, similarly, forgive former President Thabo Mbeki and even if they did, will his historical legacy always be tainted by evidence of, and allegations about, his mendacity? The sad fact is, the more we learn about Mbeki’s role in the Jackie Selebi case, the more we are confronted with unpalatable evidence that former President Mbeki was not a person with a strong and abiding commitment to the truth.

Selebi has now been convicted and sentenced for corruption. However, it is unclear whether the full truth about the events surrounding the Selebi case - including the events that led to the suspension of former National Director of Public Prosecutions, Vusi Pikoli after he issued an arrest warrant for Selebi – has been told.

On 9 November 2006, then President Mbeki wrote a letter to Pieter Groenewald, an MP in the National Assembly. Groenewald had written a letter on 7 November 2006, requesting President Mbeki to appoint a Judicial Commission of Inquiry to investigate various allegations of corruption leveled against Selebi. In the letter, Mbeki declined to appoint such a commission and wrote:

Up to now nobody within the state structures has informed me that there are any investigations affecting National Commissioner Selebi that are being conducted by anybody, including the DSO, (the Scorpions). I am certain that if there was such an investigation, or such an investigation was contemplated, I would have been informed accordingly. In this regard. I must emphasise that if any of our law enforcement or intelligence agencies felt that they had information that justified such an investigation, I would encourage them to do their work without let or hindrance, in keeping with their legal mandate….

I have the greatest confidence in National Commissioner Selebi. I am certain that whatever the rumour mill is saying about him, he will continue to do his critically important work with the same diligence, dedication and selflessness he has shown ever since we appointed him as National Commissioner of the SAPS.

The conviction and sentencing of Jackie Selebi demonstrates that the confidence expresssed in Selebi in the second paragraph of the letter quoted above turned out to be misplaced. It has now also emerged that the claim made in the first paragraph of Mbeki’s letter is difficult (if not impossible) to square with the known facts. In paragraph 257 and 258 of the Ginwala Inquiry Report, Ginwala made the following findings:

It is not disputed that Adv Pikoli met with the Minister and briefed her on the investigation into the National Commissioner of Police on 13 separate occasions: In March 2006, in August 2006, on 9 November 2006, on 16 November 2006, on 11 March 2007, on 13 March 2007, on 17 March 2007, on 28 March 2007, on 8 May 2007, on 25 June 2007, on 11 September 2007, on 18 September 2007 and on 23 September 2007. Following these meetings he furnished the Minister with two written reports on 19 March 2007 and 19 September 2007.

It is also common cause that Adv Pikoli met and briefed the President on the investigation against the National Commissioner of Police on 10 occasions: In March 2006, in August 2006, on 9 or 10 November 2006, on 14 November 2006, on 20 November 2006, on 11 March 2007, on 9 May 2007, on 20 May 2007, on 15 September 2007 and on 16 September 2007. The evidence is that he gave the President written reports on 7 May 2007 and 16 September 2007.

President Mbeki was therefore briefed about the investigation against Selebi on at least two occasions before he wrote the letter to Groenewald in which he claimed that no one “in state structures” had informed him about any investigation (or pending investigation) against Selebi. In fact, Mbeki met Pikoli for a third time to discuss the investigation against Selebi on the very same day that he wrote the letter to Groenewald. As this was a letter and not a national televised speech, one will never know if Mbeki’s bottom lip quivered while he was writing this letter.

This casts new doubt on the veracity of a letter purportedly written by Mbeki to the then Justice Minister Brigitte Mabandla on 17 September 2007 – 6 days before Pikoli’s suspension – about the Pikoli case. Mbeki’s office first refused to release the letter to the Ginwala Inquiry - claiming that it was privileged – but later relented and released the letter to Ginwala. The letter did not contain the smoking gun that Pikoli and his lawyers had expected. In part it reads (see paragraph 264 of Ginwala Report):

In view of the constitutional responsibilities of the president with regard to the Office of the National Commissioner of the police service, I deem it appropriate that you obtain the necessary information from the national director of public prosecution regarding the intended arrest and prosecution of the national commissioner. This would enable me to make such informed decisions as may be necessary with regard to the national commissioner.

I have always wondered about the authenticity of this letter. In the context of the known events,  the contents of this letter seem, to say the least, surprising. Pikoli had met Mbeki on 15 and 16 September 2007 to brief him on the Selebi matter and on his intention to arrest Selebi. Ginwala confirmed that at the first meeting on 15 September Pikoli informed Mbeki about the warrants obtained for the arrest of Selebi.

At this meeting on 15 September Pikoli was asked to prepare a report for the President on the impending arrest of Selebi, which Pikoli did. He handed the report to the President on 16 September and again discussed the matter of Selebi’s case with the President. Yet a day later Mbeki wrote a letter to the Minister of Justice asking her to obtain the necessary information from Pikoli about the intended arrest of Selebi – information which Ginwala found Pikoli had already provided to Mbeki the previous day.

What other information – not provided by Pikoli – did Mbeki need? The letter is rather vague and does not specify the nature of the information required by Mbeki. If Mbeki needed specific information not provided to him by Pikoli at the two meetings on the 15 and 16 September and in Pikoli’s report, why did Mbeki not stipulate in his letter to the Minister exactly what information he wanted to obtain?

Mbeki had been briefed 10 times about the investigation against Selebi. He had two meetings in two days with Pikoli about the arrest and also received a report from Pikoli about the arrest. Yet the day after these two meetings he wrote a letter in which he asked the Minister to obtain more information from Pikoli about the arrest without saying anything about the nature of the information required.

The Ginwala Inquiry Report may cast further light on the matter. After receiving the letter written by Mbeki on 17 September 2007, Menzi Simelane wrote a letter to Pikoli the next day (18 September 2007), which was signed by Minister Mabandla and sent to Pikoli. Ginwala comments as follows on this letter sent by the Minister to Pikoli (see paragraph 159 of the Report):

The letter prepared by the DG: Justice did not conform to the request from the President [in his letter] to the Minister dated 17 September 2007. I point out elsewhere in the report that the literal reading of the letter conveys a meaning that Adv Pikoli was to stop any plan to arrest and prosecute the National Commissioner of Police until the Minister was satisfied that there was sufficient information and evidence to do so. . .The DG: Justice should have been acutely aware of the constitutional protection afforded to the NPA to conduct its work without fear, favour or prejudice. The contents of the letter were tantamount to executive interference with the prosecutorial independence of the NPA, which is recognised as a serious offence in the Act.

If I was an investigative journalist or a prosecutor, I would probe the necessity for the writing of this letter by Mbeki to Mabandla. Was it perhaps an after the fact fabrication to cover up a different letter written by Mbeki to Mabandla? I would wonder whether the “real” letter actually instructed Mabandla to issue an instruction to Pikoli to stop the arrest of Selebi (which would have been unlawful).

Remember, after receiving the letter from Mbeki, Simelane and Mabandla sent the letter to Pikoli which contained the instruction not to proceed with the arrest of Selebi. Why would the normally soporific and lethargic Minister suddenly ask her DG to write a letter containing an instruction which Ginwala found was probably unlawful, when all the President asked her to do was to get more information from Pikoli?

Why would Mabandla tell Pikoli on 23 September (when she asked him to resign and he refused and Mbeki then suspended him that same day): ”Vusi, it’s about integrity and one day I will speak” (see paragraph 281 of the Report)?

It does not make much sense to me. Could it be that poor Menzi Simelane drafted the letter (later signed by Mabandla) which ordered Pikoli not to arrest Selebi, because that is what the President had ordered them to do in a letter that was never produced at the Ginwala Inquiry and was replaced by a letter fabricated by the Presidency after the fact?

Of course, I have no idea whether this is what happened. I am not claiming that the letter provided to the Ginwala Inquiry was fabricated and have no hard evidence to suggest that it was. I am, however, posing questions about the events, which – in the light of all known facts – do not seem to add up.

In the light of the evidence that Mbeki was less than truthful about his knowledge about the investigation against Selebi, questions about what actually happened in those fateful few days will remain. Only Mabandla, Simelane or someone else in the Presidency could answer these questions and lay to rest the suspicions of duplicity at the highest level of government.

Simelane was slammed by Ginwala as an unreliable and arrogant witness. His performance before the Ginwala Inquiry was up there with the performances of Glen Agliotti and Jackie Selebi during the trial of the latter. Ginwala also found Simelane may have been acting unlawfully when he drafted a letter for former justice minister, Brigitte Mabandla, instructing Pikoli to cease the investigation into Selebi until she was satisfied about the merits of the case.

A subsequent investigation into Simelane’s conduct at the inquiry by the public service commission (PSC) found he should have faced a formal hearing, but Justice Minister Jeff Radebe overruled this and recommended him to President Jacob Zuma in November last year to be appointed as Vusi Pikoli’s successor.

If the Johannesburg Bar finds that Simelane’s conduct made him unfit for membership of the Bar and he is struck off as a member of the Bar, it would in effect mean that he would have been ineligible for appointment as NDPP at the time of his appointment. Whether this would in fact happen, is of course far from clear.

Section 9(1)(a) of the NPA Act states that anyone can be appointed as NDPP who ”possess legal qualifications that would entitle him or her to practise in all courts in the Republic”. One therefore does not have to be a member of the Bar to be eligible to serve as the NDPP. One needs to have obtained the relevant legal qualification – usually an LLB – to qualify for appointment.

But section 9(1)(b) of the Act further states that one can only be appointed as NDPP if one is a “fit and proper” person. If Simelane is struck off as a member of the Bar by the High Court because he is no longer a fit and proper person, it would mean that a High Court had in effect found that Simelane does not possess the qualities specified in the law to have been legally appointed as NDPP.

At the very least, such a finding – if it is ever made – would bolster the application challenging the legality of Simelane’s appointment. If such a finding were ever to be made, Simelane would really have no other choice but to resign as NDPP. If this ever happened, it would leave very difficult legal questions unanswered as it would mean that Simelane’s appointment was unlawful when it was made. Minister Jeff Radebe and President Jacob Zuma would obviously be severely embarrassed by such a finding and questions will be asked about the motivation behind Simelane’s appointment.

And if such a finding is made, would that mean that all the decisions taken by Simelane as NDPP – including the decision to call off attempts to freeze the foreign assets of businessman Fana Hlongwane, who was allegedly a beneficiary of arms deal corruption – were null and void?

Maybe it is too early to worry about these matters. Simelane might provide the subcommittee of the Johannesburg Bar with excellent reasons why he is indeed a fit and proper person. He might argue – as he did at a public debate that I attended – that he was merely following instructions from the then Minister and the then President when he wrote the letter containing an illegal instruction and when he appeared before Ginwala and misled that Inquiry. Much like some Nazi’s after the second World War and police officers after the end of apartheid, he might argue that he was only following orders and should therefore not be blamed for what he did.

It would be interesting to see to what extent Simelane blames members of the previous administration for his troubles and what facts he will be prepared to put before the subcommittee to protect himself. Could we see some new revelations about what exactly happened after then President Thabo Mbeki decided to suspend Vusi Pikoli because he wanted to arrest Jackie Selebi?

Probably not. But this inquiry into Simelane fitness reminds us that his appointment as NDPP was one of President Jacob Zuma’s most troubling acts as head of State. Whether he is ultimately cleared or not, it is unfortunate that our NDPP, who – like Caesars wife – should really be beyond reproach, finds himself in a position where he has to answer questions about whether he is a fit and proper person as required by the law.

Simelane’s view differs from that of his own staff intimately involved in the case. Staff at the AFU maintain that there is good reason to suspect that the R200 million received from successful arms deal bidders was paid as bribes and they have pressed for the case against Hlongwane to go ahead.

Simelane points out correctly that:

if forfeiture process were to be instituted by the NPA, it would require a good basis for doing so as opposed to a simple suspicion. The test though remains lesser than the criminal test of proof beyond a reasonable doubt. It is a civil test of balance of probabilities.

But curiously, he then applies this test in a rather eccentric manner, arguing that because the test is one of probabilities Hlongwane needed:

to show on a balance of probabilities that the money was not obtained from criminal activities. Put another way, they needed to rebut the suspicion of criminal activity. They did not have to prove beyond a reasonable doubt that the money was obtained legally. For this purpose they were advised to submit a formal memorandum supported by annexures, if any.

Simelane seems to argue that the submissions made by Hlongwane’s lawyers cast doubt on the suspicion of criminality and hence necessitated the dropping of the case. Because the source of the money was known, it was for the AFU to provide other evidence to prove that the money was not received as part of an attempt to corrupt the arms deal. This seems strange as the test is one of probabilities and one must ask, what is more probable: the version presented by Hlonwagne’s lawyers or the version presented by the AFU.

Just because Hlongwane provided a story that casts doubt on the version presented by the AFU does not mean that on a balance of probabilities Hlongwane was not involved in corruption. On balance, one has to decide which version is more plausible, not whether the AFU has a watertight case.

AFU lawyers are adamant that on the balance of probabilities there was criminal conduct and thus maintain their version is more plausible and one would have thought that a conscientious and honest NDPP would place sufficient trust in his lawyers to go with their version.

Nevertheless Simelane chose rather to believe Hlongwane. This is strange as BAE who paid the money has entered into a plea bargain on some of the bribery allegations against it while other charges against them were dropped, partly because anti-corruption legislation in the UK is deficient – unlike South Africa who has much stronger anti-corruption legislation.

The crux of the matter is this: there is strong suspicions, based on the available evidence, that BAE paid bribes via Hlongwane to secure arms deal contracts from South Africa. Hlongwane’s lawyers provided a different story. One had to choose either to believe this story of Hlongwane or to believe the mountains of circumstantial evidence pointing the other way. Simelane chose to believe the former and not the latter.

That was a choice his own investigators with intimate knowledge of the details of the case would not have made. The question then arises: why did Simelane believe Hlongwane rather than the lawyers in the AFU? To answer this question one has to remember that the AFU lawyers are not well-connected ANC funders and supporters while Hlongwane is. One also has to remember that Hlongwane is alleged to have paid bribes of millions of Rand to various ANC connected people and recall that Simelane was deployed to the NDPP by the ANC.

If one has strong political loyalties and one is presented with two versions of events, one is likely to believe the version that will be most beneficial to one’s political masters.

Maybe all those lawyers at the AFU are wrong and Simelane – with his limited knowledge of the facts – is right. But given Simelane’s track record as a loyal servant of the rich and politically powerful, reasonable people will suspect that Simelane chose to believe one rather than the other side because he was politically required to do so. Was his choice thus a political rather than a legal choice?

A choice for the other version presented by the AFU may have had adverse consequences for many people in the ANC who is alleged to have taken bribes. I for one suspects that this may well have tilted the scales against the AFU in favor of Hlongwane. If Simelane was an honest man and if he had not been exposed at the Ginwala Inquiry as someone who was prepared to act in ways that are both dishonest and perhaps even criminal, I would have given Simelane the benefit of the doubt.

However, given the grave doubts about Simelane’s honesty and integrity, it is impossible to give him the benefit of the doubt. To this observer a reasonable suspicion thus exist that Simelane made a political decision to save the ANC further embarrassment from the arms deal bribery. The AFU lawyers who actually worked on the case agree with me and not with Simelane.

Would Vusi Pikoli have made the same decision as Simelane? I suspect not. No wonder he was fired.

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.

The Minister’s statement reveals that the Public Services Commission (PSC) has recommended that Adv Simelane be subjected to a disciplinary hearing because of the findings of the Ginwala Inquiry against him. The Minister has decided that this recommendations must be rejected on the basis, inter alia, that Simelane was not afforded an opportunity to give his side of the story and hence the PSC had flagrantly abused Adv Simelane’s fundamental rights to he heard.

This is, to say the least, a rather peculiar argument that displays a spectacular lack of understanding of the fundamental right to be heard. Adv Simelane would of course have been afforded the opportunity to tell his side of the story before a disciplinary hearing and his fundamental rights would have been perfectly preserved if the Minister had ordered a disciplinary hearing as recommended by the PSC. The PSC did not conduct a hearing and did not make any findings about whether Simelane is fit to hold office.

It was merely tasked to make a recommendation of whether further steps should be taken again Simelane. The Minister has obviously decided that such a disciplinary hearing would not be in the interest of Simelane because at such a hearing, chaired not by the Minister (a politician) but by a real lawyer, Ginwala’s serious findings of wrongdoing would have had to be scrutinised properly.

Minister Radebe states that the “attack on the credibility of Advocate Simelane by the Ginwala Enquiry because he had allegedly not disclosed this letter [written by him and signed by the then Minister of Justice] to the Enquiry and therefore made a misrepresentation to the Ginwala Enquiry is without any  foundation as the Ginwala Enquiry was already in possession of the letter before Advocate Simelane had given evidence”.

The problem is, the Ginwala Report makes no such finding whatsoever. The Ginwala Inquiry and the PSC Report actually refer to a different letter written by President Mbeki a day earlier, which Simelane had failed to provide to the Commission. The Minister is thus “refuting” a finding that was never made and fails to address the fact that Simelane had hidden the letter written by President Mbeki to the Minister of Justice from the Inquiry.

Either the Minister and his advisers are very, very dim-witted, confusing two completely different letters or, well, or they are trying to pull the wool over our eyes by not sticking to the facts (otherwise known by us mere mortals as the truth).

We know of course that Adv Simelane lied – not once, but twice – to the Inquiry by denying that he had obtained legal advice on the relationship between the Department of Justice and the NPA and only “remembered” that he had obtained such advice when he saw Adv Wim Trengove producing the document with the legal advice. Minister Radebe’s defense?

This is a common human experience in a court of law that a witness would correct him or herself. Such a correction does not necessarily justify a conclusion that a witness was lying when he corrected himself.

Anyone who has read the transcript of the cross examination would be hard pressed to agree. In any event, it is exactly to determine whether Simelane did lie that a full disciplinary hearing was recommended by the PSC. The Minister’s use of the word “necessarily” above is telling. Minister Radebe’s view is in essence: “Well Simelane might have lied. Or he might have first forgotten about the existence of legal advice that was at the heart of his own submissions to the Inquiry before miraculously “remembering” it. In any event, it would be unfair to Simelane to determine whether he is a liar by having a disciplinary hearing.”

This view seems to be based on a reasonable apprehension that the truth has a habit of emerging at disciplinary hearings.

Ginwala was particularly scathing of Simelane because he had drafted a letter ordering Pikoli not to proceed with the arrest of Jackie Selebi. The Minister quotes selectively from the Supreme Court of Appeal case to suggest that there was nothing wrong with this letter. But Radebe’s statement is unfortunately not correct as he fails to include the very next sentence in the SCA judgment which reads:

although the Minister may not instruct the NPA to prosecute or to decline to prosecute or to terminate a pending prosecution, the Minister is entitled to be kept informed in respect of all prosecutions initiated or to be initiated which might arouse public interest or involve important aspects of legal or prosecutorial authority.

No wonder Minister Radebe has faith in Simelane. They both seem to have a tendency to make statements about the law which are not correct. Minister Radebe thus fails to address the fact that Simelane had drafted a letter instructing Pikoli not to arrest Selebi which led Ginwala to find:

The DG: Justice should have been acutely aware of the constitutional protection afforded to the NPA to conduct its work without fear, favour or prejudice. The contents of the letter were tantamount to executive interference with the prosecutorial independence of the NPA, which is recognised as a serious offence in the Act.

The selective quotation from the SCA judgement and a blithe comment that the Simelane could not be blamed for writing a letter that contained a patently illegal instruction because the Minister had signed the letter, suggests that Minister Radebe either holds the view that the SCA and the Constitutional Court are wrong about the nature of the NPA’s independence and that the executive is therefore justified in ignoring the courts, or that it is perfectly fine to appoint a person as NDPP who writes letters that is in breach of the law.

Either way, the statement by the Minister seems to confirm the view that Simelane was appointed not because he was fit and proper, but exactly BECAUSE he was not fit and proper.

The following exchange between Wim Trengove and Simelane reveals much about how Simelane sees the role of the NPA and his lack of respect for judgements of the Constitutional Court:

TRENGOVE: I see. The NDPP also enjoys Constitutional independence in the exercise of his powers and the performance of his functions, correct?

SIMELANE: It’s been argued so, yes.

TRENGOVE: I beg your pardon.

SIMELANE: It’s been argued so, yes he does.

TRENGOVE: It’s been argued so?

SIMELANE: Yes.

TRENGOVE: No, it’s not being argued, the Constitution says so, correct?

SIMELANE: It says what?

TRENGOVE: It says that the – are you not acquainted with the Constitutional entrenchment of the independence of the NPA?

SIMELANE: I have heard arguments to that effect.

In other words, Simelane is saying here that ONE possible view (“I have heard arguments to that effect”!) is that the NPA is independent, but that he clearly does not share that view. His view was demonstrated by his drafting of a letter – later signed by the Minister of Justice – which illegally purported to order Vusi Pikoli not to proceed with the arrest of Jackie Selebi. Mr Simelane thus believes the NDPP must take orders from the Minister of Justice – even if this constitutes a criminal offence – and that the NPA does not enjoy any independence from the executive.

This belief is of course not only spectacularly wrong. It is also highly dangerous. A NDPP who holds such views is a NDPP who one fears may illegally take instructions from the Minister or the President to prosecute or not prosecute individuals (like the President himself!) depending on whether such a prosecution would be politically or personally advantageous for the President or not.  If charges against President Zuma are reinstated, the President will merely have to issue an illegal order to him to drop the charges and Mr Simelane may very well obey that illegal order – unless he has changed his mind about the independence of the NPA since his humiliation before the Ginwala Inquiry.

Later on in the exchange between Trengove and Simelane, Simelane reveals his utter contempt for the Constitutional Court.

TRENGOVE: The question is do you not understand that section to be a Constitutional guarantee of independence?

SIMELANE: No I don’t read it that way.

TRENGOVE: I see. And if Mr Pikoli suggests that it is, do you say that he is wrong?

SIMELANE: I would argue with him about it’s meaning, if that’s what he said.

TRENGOVE: I see. So your fundamental difference with him is that he contends that the Constitution guarantees the independence of the NPA while you dispute it, correct?

SIMELANE: I dispute that the Constitution says so.

TRENGOVE: I see. Can I tell you what the Constitutional Court says about it Mr Simelane and I am reading from the certification judgment where the Constitutional Court certified the Constitution, in paragraph 146 in which they referred to this provision of the Constitution Section 179(4). The Constitutional Court says the following:

 ”Section 179(4) provides that the national legislation must ensure that the Prosecuting Authority exercises its functions without fear, favour or prejudice.”

And then please listen to the next sentence:

 ”There is accordingly a Constitutional guarantee of independence and any legislation or executive action inconsistent therewith would be subject to Constitutional control by the courts.”

So the Constitutional Court agrees with Mr Pikoli, Mr Simelane, correct?

SIMELANE: To it?

TRENGOVE: The Constitutional Court agreed with Mr Pikoli.

SIMELANE: Yes the Constitutional Court yes.

TRENGOVE: And it contradicts you, correct.

SIMELANE: Yes I would say it does in that respect yes.

TRENGOVE: Yes indeed. How dare you – (pause)

SIMELANE: I beg your pardon?

TRENGOVE: How dare you take on Mr Pikoli to the point of accusing him of impropriety and contending that he is (not) fit for office when in fact you haven’t read what the Constitutional Court has said about this section?

So our President has purported to appoint a NDPP who is either scandalously ignorant about the meaning of the Constitution as interpreted by the Constitutional Court  (hardly likely as he had requested an opinion of Senior Counsel which must surely have included reference to the Constitutional Court case) or he is contemptuous of the Constitutional Court and believes that his own interpretation of the Constitution trumps that of the Constitutional Court (rather more likely, given that we know Mr Simelane purported to order Pikoli to stop the arrest of Selebi despite having read opinion of senior counsel that the NPA is independent).

The irresistible inference must therefore be drawn that Simelane was appointed as NDPP because he has shown himself to be contemptuous of the Constitution and the Constitutional Court and willing to lie and deceive to please his political masters. What will he do (within or outside the bounds of the law) to prevent our President from ever standing trial? Obviously our President thinks he will do almost anything (legal and illegal) to protect our President from prosecution.

No wonder the President purported to appoint him as NDPP.

The Constitution requires that the NDPP must be appropriately qualified and the NPA Act defines “appropriate qualification” as somebody who is: (i) a South Africa citizen; (ii) possesses legal qualifications that would entitle him or her to practice in all Courts in the Republic; and (iii) must be a fit and proper person, with due regard to his or her experience, conscientiousness and integrity to be entrusted with the responsibilities of the office concerned.

As the Ginwala Inquiry made clear:

What the Act also envisages is that the incumbent must be a person of experience, integrity and conscientiousness to be entrusted with the responsibilities of the office of the NDPP…. The notion of integrity is one that does not attract much debate in this case. The notion relates to the character of a person – honesty, reliability, truthfulness and uprightness.

Unfortunately, we know from the Report of the Ginwala Inquiry that Simelane is not honest. Neither is he reliable, nor does he possess the necessary truthfulness and uprightness required by the Act. His appointment is therefore not legally valid as he does not meet the MINIMUM requirements for the job.

Simelane was the main witness of the government during the Inquiry but he showed himself to be a liar with a lack of understanding of his job and a willingness to mislead the Inquiry to achieve specific, politically required, ends.

The Ginwala Inquiry found that Simelane had misled the Inquiry by hiding from it the fact that he had obtained a legal opinion which contradicted his own views on the nature of the relationship between the Department of Justice and the NDPP. He only conceded that there was indeed such a legal opinion when he was confronted with this fact by Adv Wim Trengrove during cross examination. Ginwala states:

The DG: Justice had an incorrect understanding of his accounting responsibilities under the PFMA, despite being in possession of legal opinions from senior counsel explaining the ambit of his responsibilities. He allowed the Minister to continue with an incorrect understanding of the responsibilities of the NDPP.

Simelane had also drafted a letter – later signed by then Justice Minister, Brigitte Mbandla – which instructed Pikoli not to proceed with the arrest of Jackie Selebi. This instruction was clearly illegal and constituted a criminal offense in terms of the NPA Act. As Ginwala tactfully put it:

the conduct of the DG: Justice in drafting the document in the manner it reads was reckless to say the least. The DG: Justice should have been acutely aware of the constitutional protection afforded to the NPA to conduct its work without fear, favour or prejudice. The contents of the letter were tantamount to executive interference with the prosecutorial independence of the NPA, which is recognised as a serious offence in the Act…..

Ginwala also found that Simelane was not a man of honesty and integrity as he had made statements that were false and presented legal positions that were untenable:

I must express my displeasure at the conduct of the DG: Justice in the preparation of Government’s submissions and in his oral testimony which I found in many respects to be inaccurate or without any basis in fact and law. He was forced to concede during cross-examination that the allegations he made against Adv Pikoli were without foundation.

In the light of the above it is very difficult to sustain the fiction that Simelane is even remotely a person who could be called “fit and proper”. He is not honest. He is not reliable. He is not truthful. What counts in Simelane’s favour is that his view of the NPA – not shared by Ginwala, senior counsel or by any person who has read the Act and the Constitution –  is that the NPA is not independent, that the NPA should take instructions from the Minister of Justice and the President – even in making decisions on individual cases – and hence that the NPA is a tool in the hands of the government to do with it as it pleases.

No wonder President Zuma purported to appoint him. With Simelane at the helm, no one will ever again be prosecuted if the President and the Minister does not give the go-ahead. If this appointment is allowed to stand, it will bring an end to even the pretense that the constitutional guarantee that the NDPP must act without fear, favour or prejudice, will be adhered to.

This is the darkest and most scandalous day yet in the short life of President Zuma’s tenure. The appointment shows an utter disregard for the Constitution and the law. It is nothing more than the actions of a gangster hell bent on protecting himself and his cronies. I feel ashamed that I have given our President the benefit of the doubt for all these months.

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.

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.