Constitutional Hill

Vusi Pikoli

Thabo Mbeki’s strange relationship with the truth continues

May 28th, 2009
by Pierre De Vos.
112 comments

Politicians call it “plausible deniability”. One makes a statement that everyone who hears it believes to mean X. The generally accepted meaning of X is, however, untrue. But one has parsed the words in such a way that one could always later claim never to have said what everyone thought one had said – even if one had not contested the generally accepted interpretation shortly after it was made. Or evades responsibility for one’s words by denying ever having said something that others have not really claimed one has said.

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.

“I did have national security with that man”

May 15th, 2009
by Pierre De Vos.
46 comments

Former US President Bill Clinton famously lied to the American people by saying: “I did not have sex with that women”. He then tried to wiggle out of a difficult question posed by a lawyer by saying: “Well, it depends on what your definition of ‘is’ is”. Former President Thabo  Mbeki seems to have the same informal relationship with the truth regarding the suspension and purported firing of National  Director of Public Prosecutoins (NDPP), Vusi Pikoli.

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.

NPA plagiarism scandal maybe hides a deeper truth

Apr 16th, 2009
by Pierre De Vos.
76 comments

News that Mokotedi “Kokkie” Mpshe plagiarised a decision of a Hong Kong court that was later overturned on appeal when he tried to justify his decision to drop charges against Mr Jacob Zuma, is of course highly embarrasing. But does it have any legal significance? And what does this say about the NPA – which is constitutionally required to act without fear, fabvour or prejudice – and ít integỉty and independence?

I, for one, was not surprised by this news. The weird string of cases from the House of Lords mentioned in the Mpshe document, seemingly strung together without much attempt at logic or reason, always struck me as odd. South Africa has a written Constitution and the NPA has a legal duty to follow our own prosecution policy when it decides to continue a prosecution or drop charges against an accused despite there being a winnable case against the accused. The Hong Kong court’s views on this issue was therefore allways going to be legally of little value.

And as the legally binding prosecution policy makes clear, sometimes the NPA will have a duty to prosecute no matter what the circumstances might be. This will depend on the seriousness of the charges, the effect of the kind of crime on the morale and well-being of the nation and whether the dropping of charges would send a signal to the public that would make them lose trust in the criminal justice system.

The plagiarised sections of the NPA decision were therefore always – to my mind – legally utterly irrelevant. These were the bells and whistles used by Mpshe to justify what seemed like a pretty unjustifiable decision – at least from a legal perspective. But it does seem to destroy the little credibility Mpshe had left before he took thí leap over the abbyss.

Maybe it is at this point good to recall what happened when then President Thabo Mbeki suspended Vusi Pikoli and “Kokkie” Mpshe was appointed as acting head of the NPA. Remember, Pikoli had obtained a warrant for the arrest of the Police Commisioner as well for a search and siezure of his premises and the then President really was not amused and wanted Pikoli to stop (or at least wait with) the arrest.

The same night Mbeki suspended Pikoli, and newly appointed Mpshe himself drove to the magistrate to have the arrest warrant overturned and sent someone else to have the search and siezure warrants overturned (or it might have been the other way around?). At the Ginwala Commission it transpired that Presidential adviser, Mojanku Gumbi, and Director General of Justice, Mendi Simelane, helped draft the documents to have these warrants overturned.

But when Debra Patta asked Mpshe a few days later if he had gone to the judge to overturn the warrants, he denied that he had done so. That was because he had actually gone to a magistrate to overturn the arrest warrant and he could mislead Patta (and the nation) without actually telling a bare-faced lie. His underling had gone to the judge and was not succesful in his bid to have the other warrant overturned.

It is only a fool that will think he did this without any interference from the Presidency and/or the government. Why else would Gumbi and Simelani help with the drafting of the papers? Why else was Pikoli suspended?

Seems to me it was not only the letter written by Simelane and then signed by Justice Minister, Brigitte Mabandla, to Pikoli instructing him not to proceed with the execution of the arrest and search warrants against Selebi, that could possibly have constituted criminal interference with the NPA in contravention of the NPA Act. Someone at the Presidency may also have to be investigated and may then very well have to be charged with this criminal offense.

Mpshe has therefore demonstrated in the past that he does not have exactly the same – correct – view on the independence of the NPA as Vusi Pikoli and that he definitely does not have the backbone of Pikoli either. When Mpshe then said that the decision to drop charges against Mr Zuma was made under time pressure, and that there was interference in the timing of laying the charges, the alarm bells went off.

After all, Mpshe was supposed to have made the decision on when to charge Zuma and now he was blaming others for interfering with the timing of the decision he had claimed to have made himself. Moreover, Mr Zuma’s application for a permanent stay of prosecution was only to be heard in August, so what was the time pressure Mpshe spoke about? Could the time pressure relate to the looming election and perhaps to some informal deal struck with the ANC bigwigs to drop charges before the election?

This suspicion is enhanced by the fact that Mpshe had invited Mr Zuma to make representations to him about his case, despite the fact that the Supreme Court of Appeal had found that there was no such legal duty on the NPA and the case was still under consideration by the Constitutional Court. Why did Mpshe suddenly invite Zuma to make representations – even though he had no duty to do so? Was it suggested to him that this was a way of securing his career advancement? When and how was this decision taken? Who “engaged” Mpshe on behalf ò Zuma before this decision was taken?

In a case reviewing the decision of the NPA answers would have to be found for these perplexing questions. One need not be a conspiracy theorist to suspect that Mpshe had buckled under pressure from Zuma or someone close to him and that a decision to drop the charges was then made before any of the evidence of the alleged interference was ever presented to him. Could it be that a reason had to be found for this outrageous decision, so the representations were made and the reasons cooked up after the fact?

I suspect that because the decision to drop  charges met with stern resistance from the lawyers within the NPA, the reasons provided for the dropping of charges were narrowly tailored to placate these lawyers who knew they had a winnable case. So flimsy reasons had to be cobbled together and this has now completely undermined the credibility of the NPA and opened it up for a review of the decision.

If the NPA had merely said that after receiving representations from Zuma it had decided there was no winnable case against him, that would have been the end of the matter. But because the lawyers said they would not agree to such a statement, Mpshe had to steal some phrases from an overturned decision in that bastion of democracy, Hong Kong, to justify an essentially predeterimined outcome.

I sincerely hope I am wrong. But at this point the ball is in Mpshe’s court to demonstrate why we should have any trust in his credibility. Sadly the credibility of the NPA has also further suffered in the process. Which two-bit crook with money now charged with a crime is not going to claim that the NPA conspired against him or her?

The only way to restore some credibility to the NPA is for Vusi Pikoli to be reinstated. Seems he was the only political appointee who stood his ground against interference from the politicians, the only mad with some principles. Which obviously cost him his job. But then again, as Pikoli has learnt so bitterly: One cannot afford principles if one wants to remain in favour with the present ANC crowd.

National security? Then why is the President not stepping in?

Feb 19th, 2009
by Pierre De Vos.
21 comments

There seems to be stand-off between the high brass of the police and the National Prosecuting Authority (NPA). Newspapers report that the police tapped the phones of the head of the Scorpions to try and ¨get¨ those who were investigating Police Commisioner, Jackie Selebi, then charged the çlead investigator in the Selebi matter, and now the police leadership is refusing to hand over documents needed for the Selebi case to the NPA.

Now this could get ugly. Surely our security is being threatened? Some would even call this a national security issue. Frene Ginwala say, or those ANC members on the ad hoc committee of Parliament who rubber stamped the decision of the President to get rid of Pikoli to ensure he does not charge the President of the ANC.

As the person who is responsible for national security – ostensibly the reason for the firing of Vusi Pikoli – one would have thought that the President would long ago have stepped in to ensure co-operation between these two organisations. Or to put it more bluntly: the President should long ago have taken steps to ensure that the police leadership does not try and derail the investigation against Selebi.

Yet, as far as we know, nothing is being done. Why? I smell a big, fat, stinking rat.

This suggests, first, that Selebi must be a very powerful man who holds some secrets that some in the ANC would rather not want to see revealed. What does Selebi know and who can he implicate? He must have some choice tidbits of scandal on the ANC that would make the Carl Niehaus scandal look like a sunday school picnic. Maybe he and Mendi Msimang – whose wife is being kept on as Minister who does nothing to ensure he does not sing about the ANC finances – should get together for a drink? Maybe they can invite Glen Agliotti….

Second, it shows just how spurious the reasons for Jackie Selebi`s suspension and ultimate firing have been. Surely, if the prosecuting authority and the police are at war with one another and the police leadership is trying to stop the proper investigation of the Police Commisioner who has admitted to being friends – ¨finish and klaar¨- with a mafia type drug lord and underworld kingpin, then sombody really concerned about so called national security would have stepped in.

But we do not hear a peep from the President and the stand-off between these two institutions continue.

Pikoli is now trying to argue before the High Court that ulterior motives animated his firing. Sadly there is no smoking gun here so although his firing was illegal it will not be that easy to prove because it is not easy to prove the real motive of those who claim a different motive

But
for ordinary citizens with at least two brain cells it must be very clear what is going on here. Pikoli was suspended by Mbeki because he wanted to arrest Selebi and now he was fired because the ANC wants to appoint a new NDPP who will find a ¨political solution¨for the Jacob Zuma case.

This in some weird way is understandable, because if Zuma actually has to face his day in court he will be destroyed when all the damaging evidence is brought to light about all the money he received from Shaik and all the favours he did for Shaik in return. Even if he is acquitted, most sane people will not trust him after a trial. So a trial must be stopped at all cost.

I am holding thumbs for Pikoli because as even that party hack Frene Ginwala found he is a man of the highest integrity. No wonder the ANc wants to get rid of him. Here`s a thought – pity Carl Niehaus does not have a law degree or could not have fabricated one as he could then have been appointed as NDPP. He would surely know how to deal with national security in a way that suits the ANC…

Parliament neither fit nor proper

Feb 12th, 2009
by Pierre De Vos.
93 comments

The ANC majority of a joint ad hoc committee of Parliament has now taken a political decision to rubber-stamp the decision of President Kgalema Motlanthe to fire Vusi Pikoli, the National Director of Public Prosecutions (NDPP), on the basis that Pikoli was not suitably sensitive to national security concerns and was thus not a “fit and proper” person to perform his duties as NDPP as required by the NPA Act.

This is a sham decision and fortunately for Pikoli and his legal team the report by the ad hoc committee does not do a good job of hiding this.

Section 12(6) of the NPA Act makes clear that the NDPP can only be removed for one of four objectively determinable reasons, one being that he is no longer a fit and proper person to hold the office concerned. A decision by the President to fire Pikoli can therefore only be legally valid if it  has been determined – looking at all the facts – that Pikoli is indeed no longer a fit and proper person. This is not a decision that can be taken on the basis of political considerations. In order to be legally valid, a clear determination has to be made on the facts and these facts must be shown to demonstrate that the NDPP is no longer a fit and proper person.

This would require the President and then Parliament (1) to define what constitutes a fit and proper person and (2) then to show that the NDPP has demonstrated through his actions that he no longer meets the criteria for a fit and proper person. A clear causal link must be established between the criteria set out in (1) and the facts that show the incumbent no longer meets those criteria. Otherwise the decision would be ultra vires and thus invalid and could be overturned by a court of law.

Unfortunately, the report utterly fails to define the criteria for a fit and proper person and thus falls at the first hurdle. It is thus my contention that the decision of the ANC majority is illegal and could very well be overturned. Apart from the breathtaking double standard of the ANC majority, who often talks about the right to be presumed innocent until proven guilty but failed to even pretend to consider such niceties in this case, the report fails to do what the Act requires it to do.

Of course the term “fit and proper” is not defined in the act and there may well be some difference of opinion about what the requirements for a “fit and proper” NDPP might be. It was therefore the task of the ad hoc committee to define what it understood under this term, taking into account the provisions of the Constitution and the NPA Act, before rushing to find that the man who wants to prosecute their boss does not meet the criteria set out in this definition.

So let me assist those honorable members of Parliament and explain how they should have proceeded if they had wanted to act in a legally defensible manner.

The NPA Act must be construed in the light of the Constitution and the words and phrases in it must – if it is reasonable possible to do so – be interpreted to comply with the letter and the spirit of the Constitution. We do know that section 179(4) of the Constitution states that “[n]ational legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice”. We also know that in the First certification judgment the Constitutional Court found that this phrase guaranteed the independence of the NPA and its boss. We also know that section 9 of the NPA Act states that an NDPP 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”.

Read together, this seems to suggest that in order to be a fit and proper person the NDPP must first be capable and at all times willing to act independently, in other words without fear, favour or prejudice. The NDPP must not buckle under political pressure and should not make decisions regarding the investigation and prosecution of individuals on other than legal considerations and the prosecutions policy. Some would argue that Bulelani Ngcuka was not a fit and proper person because he is alleged to have made a decision not to prosecute Zuma based on exactly such political considerations. No credible allegations of a similar kind have been made against Mr Pikoli, so he clearly meets this criterion.

Second, the NDPP must show the necessary conscientiousness and integrity when doing his job. He must not be lazy, spectacularly careless or act in a dishonest or criminal manner. Given the constitutional guarantee of prosecutorial independence, this cannot mean that the NDPP must always be perfectly correct or must make the correct or wise decision every single time. To interpret the section otherwise would be to give a blank cheque to the President and Parliament to interfere in individual decisions made by the NDPP and even to fire him if they disagreed with the correctness or wisdom of a particular decision he made. Such an interpretation would not be in conformity with the constitutional guarantee of independence of the NDPP.

A general and persistent failure to follow prosecutions policy agreed upon with the Minister of Justice would however meet the threshold and would allow the President to fire the NDPP. It must be remembered that the Minister must formulate such a prosecution policy in concurrence with the NDPP and that this provides the Minister with the power to fulfill his or her constitutional duty to “exercise final responsibility” over the NPA.

At present the prosecutions policy does not require the NDPP to take into account national security when making decisions to investigate or prosecute individuals. The policy might well have to be amended to include such a provision, provided that the term “national security” is defined with sufficient precision and safeguards are included in the policy to ensure that such a clause does not give the Minister or the President unconstitutionally broad powers to interfere with the work of the NDPP. Fact is, at present there is no such policy and even if it could be shown that Mr Pikoli was not sensitive enough to national security issues, legally the prosecuting policy did not require him to do so.

In any event, even if the prosecutions policy did mention national security, on the facts before us it is clear that Mr Pikoli’s actions regarding the arrest of Police Commissioner Jackie Selebi do not warrant a finding that he was insensitive to national security. This is because the President has a constitutional duty to uphold the Constitution and also to oversee national security issues. Yet the President did not mention “national security” concerns when he suspended Mr Pikoli and nor did the government argue that Mr Pikoli had not taken into account national security concerns when he requested a warrant to be issued for Mr Selebi’s arrest.

If the President, with all the facts at his disposal and privy to national intelligence briefings, did not think this was a serious enough issue to warrant Mr Pikoli’s suspension, then it clearly was not a real issue that demonstrated Mr. Pikoli lacked the conscientiousness and integrity required by the Constitution and the NPA Act. Unless, of course, the President and the government lied when it suspended Mr Pikoli and  unless the government then lied about the reasons for Mr Pikoli’s suspension before the Ginwala Commission of Enquiry and provided bogus reasons for his suspension.

Surely the President must be given the benefit of the doubt on this issue – given the fact that he is privy to all the dark secrets of the country and given also the fact that we must presume that the President would not deceive the nation or the Ginwala Commission of Enquiry.

Given the above, it seems clear to me that the decision by the ANC majority on the joint ad hoc committee of Parliament is a political and not a legal decision. I contend that the decision to fire Pikoli is therefore illegal and that Parliament will be in breach of the law and the Constitution if it confirms the decision of the ANC majority on the committee. I sure as hell hope Mr Pikoli and his lawyers take this case to the Constitutional Court and that, in due course, it will be shown that Parliament demonstrated that it was neither fit nor proper when it did this political hatched job on Mr Pikoli in order to try and protect their President.

Questions for Chikane, Mbandla, Gumbi, Simelane, Mpshe and Mbeki

Jan 22nd, 2009
by Pierre De Vos.
88 comments

Sometimes the truth seems so blindingly obvious that one is tempted to believe that even our politicians would not be able to twist the facts to justify the indefensible – only to be reminded that politicians lie for a living and that the ordinary voter is often too lazy or stupid to care.

But let us consider this question, nevertheless: who should we believe?

Should we believe Vusi Pikoli, the man who even Frene Ginwala – old friend of Thabo Mbeki and disciplined member of the ANC – found to be a man of the highest integrity?

Or should we believe Brigitte Mbandla, the often tired and emotional ex-Minister of Justice, her Director General, Mr Simelane, who was caught lying before the Ginwala Commission, or Thabo Mbeki, a man who has a rather bizarre relationship to facts and the truth, or his Director General, Frank Chikane, who first made ringing statements about the deal struck with Adriaan Vlok before he went to the Ginwala Commission to denounce that very same deal when his boss decided a case had to be built against Pikoli?

Let us consider the evidence and probe a bit deeper into this obvious question. On the one side we have Vusi Pikoli, who told the Parliamentary Committee set up to rubber stamp the decision of President Kgalema Motlanthe to fire the National Director of Public Prosecutions (NDPP), that if the Scorpions had never investigated the murder of mining magnate Brett Kebble he would not now be suspended and required to defend himself before a parliamentary committee.

“If it had not been for the matter of Kebble I would not have this problem I am having today,” he said, adding that the decision to charge Selebi was the direct reason for his suspension. He also described as unlawful and unconstitutional an instruction from then justice minister Brigitte Mabandla that he halt the investigation of Selebi. He said both Mbeki and Mabandla had asked him to resign but he had refused as this would have allowed executive interference to triumph over the independence of the National Prosecuting Authority. “Because I refused to obey an unlawful instruction I was suspended.”

On the other hand we have the government, this time represented by the honourable Reverend Chikane who claimed yesterday that it was wrong to say that Mbeki had abused his power.

“I was there. The president did nothing to stop Pikoli from arresting Selebi.” Chikane said Mbeki had merely acted to manage any potential security fallout when he asked the head of the National Prosecuting Authority (NPA) to wait two weeks before arresting Selebi on corruption and fraud charges. “There was a great risk of something extraordinary happening to destabilise the country and it was the duty of the president to ensure the country was not destabilised.

On the face of it, the claim by Chikane cannot be squared with the claim by Pikoli. Unless, of course, Chikane had learnt a trick or two from his former boss and was twisting the truth in such a way that he could sooth his conscience while at the same time misleading the nation.

I will assume that Chikane is correct when he says that Mbeki did not order Pikoli to stop the arrest of Jackie Selebi. He did not phone his friend Selebi and asked him to come and arrest Pikoli, “finish and klaar”, because he was threatening national secuirity by having the audacity to want to arrest a friend of the President. But this does not mean that the President did not act in ways to indeed stop the arrest of Selebi.

When this case comes to court I would like to see Chikane, Mbeki, Mbandla, Gumbi and Simelane called to the stand and asked the following questions:

  • What is the relationship between Mbeki and Selebi? How long do they know each other? How much money did Brett Kebble give to the ANC? Did he give any money to Mbeki or any of his pet projects?
  • After it became clear that Pikoli was going to arrest Selebi, what did the President say to Chikane, Mbandla, Gumbi, Simelane or Mpshe about the case? Did he ask any of them (or anyone else) to take steps to ensure that Pikoli did not arrest Selebi before the Polokwane conference? If he did not, was it because he was momentarily dumbstruck or are those testifying just lying to protect their boss?
  • Why did Simelane write the letter illegally instructing Pikoli not to arrest Selebi and why did Mbandla sign it? Was there any link between this letter and anything the President or his staff told Simelane or Mbandla? If not, why has Simelane and Mbandla not been arrested by the police for this illegal interference with the NPA? Why were they not immediately fired by the President for issuing this illegal order?
  • If Mbeki did not do anything to stop the arrest of Pikoli, why was Pikoli suspended by the President on a public holiday and only a day before he was going to execute the warrant for Selebi’s arrest? 
  • If Mbeki, as his underlings and Ginwala have claimed, was concerned about the national security implications of Selebi’s arrest, and if Mbeki had not tried to stop that arrest, why on earth did he not try and stop the arrest? Surely, if there was really a national security concern and if he thought he had a duty to act to protect the country, then he would have made sure that Selebi would not be arrested – otherwise he would be in dereliction of his duties as President? Please explain this contradiction.
  • After Pikoli’s suspension and the appointment of Mokotedi Mpshe as NDPP, what was said by Mbeki, the Minister or anyone else to Mpshe about the arrest of Selebi? Who gave the instruction to Mpshe to cancell the arrest warrant? Surely it must have been on instructions from the President that this instruction was given – otherwise, how does one explain the involvement of Gumbi and Simelane in the drafting of the letter to request the cancellation of the arrest warrants? Or did these officials act without instructions from the President and if so, why have they not been fired?
  • Why did the Presidency give conflicting reasons for the suspension of Pikoli? Was it incompetence or was it because they discovered that the original reason for the suspension could not be justified, so they had to cook up some new reasons ex post facto? Either way, why were they not all fired for this dishonesty/incompetence? Was it because they were acting on instructions from Mbeki?
  • Even after he was fired as President, Mbeki maintained that he had not seen any evidence of wrongdoing by Selebi, despite the fact that Pikoli had provided the President with all the information he requested – the same information that prompted an indepndent panel of experts to conclude that a strong case exists against Selebi. So was Mbeki lying when he said repeatedly that he had not seen evidence to implicate Selebi? If he was not lying, what was he smoking at the time?

A skilfull cross-examiner will have a field day with all these witnesses and I will take a bet of R1000 with anyone that under cross-examination it would become clear that Mbeki and all his underlings are lying through their teeth about this matter. Pikoli was suspended because he wanted to arrest Selebi – finish and klaar.

Why Mbeki and his underlings are spreading these “deliberate falsehoods” are beyond me. If there was good reason to suspend and fire Pikoli to protect the national security, then surely Mbeki and his underlings should all be admitting that Mbeki suspended Pikoli to ensure that Selebi was not arrested because then Mbeki would just be doing his job.

The fact that they are all denying this blindingly obvious fact can only mean one thing: they are not telling us the truth. But parliament cannot afford to face this fact so Pikoli is toast.

The NPA, the Minister and the headless chickens

Jan 16th, 2009
by Pierre De Vos.
51 comments

I see the ANC in Parliament is suggesting that the NPA Act might have to be looked at to “clarify” the relationship between the executive (specifically the Minister of Justice) and the NPA, given the fact that the SCA differed from Judge Nicholson about the exact nature of this relationship (and Frene Ginwala’s quasi-judicial report again gave an entirely different – not surprisingly far more executive minded – interpretation of this relationship).

The argument is that there seems to be two “seemingly conflicting” provisions in section 179 of the Constitution. One says that national legislation must ensure the NPA exercises its functions “without fear, favour or prejudice”. The other provision says that the justice minister must exercise “final responsibility” over the NPA. 

However, if one reads s 179 together with section 33 of the NPA Act, and if one reads these two provisions in the light of the Constitutional Court Certification judgment, which said section 179 guaranteed the independence of the NPA, there is really no conflict – unless one is Frene Ginwala and one needs to protect the Dear Leader. As the SCA has now confirmed, Nicholson and Ginwala both had it wrong.

The SCA judgment did what many of us have advocated, namely it reconciled the so called “conflict” between the two constitutional provisions in line with the approach in Namibia, saying “although the minister may not instruct the NPA to prosecute or to decline to prosecute or to terminate a prosecution, the minister is entitled to be kept informed”. Thus the appeal court seemed to limit “final responsibility” to information giving (when so requested by the Minister).

Given our system of precedent, the SCA interpretation is now authoritative, which means as a matter of law Ginwala’s report got it spectacularly wrong. We all know why this bright woman gave such a bizarre interpretation of the Constitution and the law – she had a political master to please and was clearly NOT independent and impartial when she drafted her report.

The SCA judgment therefore has some serious consequences for the President and for the National Assembly, who must decide whether to endorse the President’s recommendation to fire Vusi Pikoli. This is because in the light of the SCA judgment, the reasons given by President Kgalema Motlanthe for firing the head of the NPA is now confirmed to have been legally untenable. And as the courts and not the President or his legal advisors are tasked by the Constitution to interpret that text, Motlanthe does not have a leg to stand on.

Ginwala said the provision affording the justice minister “final responsibility” over the NPA meant more than “purely information passing” as it must be read in the light of the co-operative government provisions of cvhapter 3 of the Constitution. There should be “discussions” between the minister and prosecutions chief, and the minister could “bring to the consideration of the (national director of public prosecutions) such matters as government may find to be relevant in respect of such cases.”

She also suggested that the NPA head had a duty to take into account the claims made by the Minister or the President regarding “national security” before he made decisions to arrest or prosecute anyone – regardless of whether any solid proof had been provided by the President about how the so called national security would be affected. So according to Ginwala, Pikoli had a duty to obey the President when he claimed national security was at stake in the arrest of Jackie Selebi and he therefore had a duty NOT to arrest Selebi until the President said it was ok to do so.

This kind of logic followed by Ginwala and Motlanthe is an utter abomination and – if followed – would lead to a complete destruction of the independence of the NPA. I will give an example to show why.

Imagine the NPA head decided to arrest a friend and political ally of the President for murder. In order to protect his friend the President now tells the NPA boss not to arrest his friend because if he did, it would affect “national security”. He provides no proof of this, but instead tells the head of the NPA that if he arrested the President’s friend, the President would become so cross that he would have to surf the Internet again.

“You know what happened the last time I did that,” he would say, “I discovered HIV maybe does not cause Aids and 300 000 people died as a result and I became the laughingstock of the world, so you better stop this nonsense right now or our national security will be severely compromised!”

This interpretation is not compatible with a constitutional guarantee of prosecutorial independence as confirmed by the Constitutional Court and by the SCA. The Ginwala interpretation – on which Motlanthe relied to get rid of the man who wants to continue the prosecution of Jacob Zuma - is therefore a legal nonsense. This has now been confirmed by the SCA, so Ginwala really has egg all over her face while the President, well, he must be looking like an overcooked omlette.

That is why President Kgalema Motlanthe’s recommendation to fire Pikoli – based on this bizarre and legally untenable interpretation by Ginwala - is probably illegal and why an endorsement of this recommendation by the National Assembly is on  very shaky legal ground.

As the SCA has now implicitly confirmed, section 33 makes clear that to enable the Minister to exercise his or her final responsibility over the NPA, the Minister may request information from the head of the NPA and this information can then be used to ensure that the Minister exercises final responsibility over the NPA by keeping him or her informed and allowing him or her to report on the work of the NPA without interfering with is constitutionally guaranteed independence of said NPA. 

Sadly the ANC members of Parliament are probably not going to follow the law and the Constitution on this one. They are probably rather going to obey the legally untenable recommendation of the President. Hopefully Pikoli and his lawyers will then challenge this in court, where the law and not the whims of a party hack like Ginwala will hopefully be followed.

Then Pikoli can get his job back and the “political solution” for Jacob Zuma’s very serious legal troubles will disappear. At which point Gwede Mantashe will probably call the judges counter revolutionaries again and Julius Malema will string a paragraph or two together, blaming “dark forces”, a “conspiracy”, the CIA, and Father Christmas for this terrible persecution of Mr. Umshini wam, and warming that the Youth League will not rest before every last judge in South Africa is sent to an ANC Youth League piss up.

At which point all sane people in South Africa will die laughing.

UPDATE: A few hours after writing this, I read on New24 that – yes! – my friend Julius said the following:

Malema warned that “dark forces” were at work against Zuma and implied that the five judges of the SCA had been influenced in their judgment in favour of the NPA. “Judges can be spoken to by any other person, knowing the tendency of these ones who are against us. They [the 'dark forces'] travel at night. They’ve got the potential to do anything… Courts must be above political games. They must not interfere.”

He added, however, that the ANCYL had “confidence in the courts but it doesn’t mean you can’t criticise”. Asked who the “dark forces” behind the so-called political conspiracy against Zuma were, Malema replied: “They have left the ANC. Those are the forces who are working on us. Those that have left this organisation.

“They were doing it from within. They failed. Then they left. They’re doing it form outside now because they think they can mobilise our people against this glorious movement and they are working with the imperialists, the former colonisers, to try and destabilise this country. It’s an agenda to destabilise liberation movements in Africa.”

Sadly no mention of Father Christmas……. And the Youth League piss up was also not mentioned. Ag, I just thought I had become all seeing and all knowing and for a moment I felt like Thabo Mbeki must feel every day. . . .

SCA provides common sense interpretation of section 179

Jan 12th, 2009
by Pierre De Vos.
126 comments

It is always nice when one is proven to be correct. After the Nicholson judgement, some readers of this Blog issued rather cataclysmic condemations of myself and others and suggested that we were stupid and uninformed for having predicted that section 179 of the Constitution (read with the relevant sections of the NPA Act) did not give Mr Zuma the right to make representations to the acting head of the NDPP before he was charged.

Now I see the SCA decision entirely agrees with the approach advocated by myself and others. Apologies from all those who impugned my integirty might be in order. But I am not holding my breath.

As the SCA pointed out (and as I have consistently argued) the power to review, set out in section 179 of the Constitution, can only be an ‘apex’ function. In other words, it can only be a function of the head of the NPA as head of the NPA. Section 179(5)(d) accordingly deals only with the review of a decision by the ‘relevant’ DPP – it does not include a reconsideration of the NDPP’s own decisions. The SCA then continued:

Mr Kemp also submitted that para (d) is an empowering provision, meaning that the NDPP’s power to review decisions derives solely from its terms. The corollary of his argument is that the consultation and representation requirement applies to decisions of the NDPP or else the NDPP would not be entitled to revisit his own prosecutorial decisions. In the light of the finding in the preceding paragraph thatthe provision is an ‘apex’ provision that deals with the control of the NDPP over the DPPs, the premise of the argument falls away.

As is clear from the structure of the Constitution, the underlying purpose of the provision in section 179(5)(d) is not to protect the accused or the complainant: it is to define the procedure for the exercise of the power of control of the NDPP. According to the SCA, it would be strange to find such an important right, which is not known in comparable jurisdictions or in our common law, in a chapter of the Constitution that deals basically with structures concerned with the administration of justice and not rights. The Bill of Rights deals in great detail with the rights of accused persons, and is silent about the right to be invited to make representations concerning prosecutorial decisions.

This section was therefore wrongly latched onto by Mr Zuma’s lawyers. If they thought his rights had been infringed, they should have relied on section 35 of the Constitution. But of course the rights in section 35 only comes into play once a person actually stands trial and the last thing Mr Zuma wants is ever to stand trial – so they had to clutch at straws like this to try and keep their client from facing the very serious and credible charges on which basis Schabir Shaik is already sitting in jail.

The judgment of the SCA represents a stunning victory for the NPA as it also vindicates the much maligned decision by the NPA to ask for a striking out of passages from Mr Zuma’s papers in which he mutters darkly about the political conspiracy, which Harms (for a full bench of judges from the SCA) calls “completely irrelevant”.

Most of the allegations were not only irrelevant but they were gratuitous and based on suspicion and not on fact. The excuse for including them was unconvincing especially in the light of the disavowal of any intention to rely on them. The prejudice to the NDPP was manifest. Instead of having a short and simple case, the matter not only ballooned but burst in the faces of many. There may well be reason to hold that many of the allegations were vexatious and scandalous but, once again, it is not necessary to do so for present purposes. An order on the scale of attorney and client is fully justified, especially since it is not the first occasion on which Mr Zuma has insisted on including such irrelevant allegations.

So, does the SCA judgment also represent a vindication of Thabo Mbeki? To some degree it does, because it found that the reasons for which he was fired – namely findings of a political conspiracy to prosecute Mr Zuma – was wrongly decided by Nicholson. Mbeki was therefore fired for reasons now rejected by the SCA.

At the same time the SCA – unlike cowboy Nicholson – is careful to point out that it does not have sufficient evidence to make a finding on a political conspiracy and in any event even if it did, this would not be relevant for the case brought by Mr Zuma. The judgment will thus be read by many as a rejection of the political conspiracy findings of Nicholson J – but such a finding is not made because the court said it was not proper for it to delve into these issues. We still do not know definitively whether such a conspiracy existed or not. If we follow the logic of Mr Zuma and his backers (“innocent until; proven guilty, remember!) we cannot find the NPA and Mbeki guilty of this conspiracy because they have not been found by a court of law to have engaged in such a conspiracy.

It will be interesting to see how the ANC and Mr Zuma react to the judgment. Are they now going to resurrect the rhetoric of counter-revolutionaries? Can they afford to do that with an election coming and COPE breathing down their necks? Given the fact that they embraced the Nicholson judgment and said much about their respect for the judiciary an attack on the SCA will come accross as the most callous and opportunistic kind of political move. Surely even the Gwede Matashe’s of the world are not stupid enough to throw away their last bit of credibility with the thinking population of South Africa? Now, Julius Malema on the other hand . . .

PS: This post was slightly edited. I am travelling in the USA and had to type it rather fast so there were many typos. Apologies.

SCA delivers a scathing critique of Nicholson

Jan 12th, 2009
by Pierre De Vos.
37 comments

Today the Supreme Court of Appeal (SCA) delivered a scathing indictment of the Nicholson judgement in the case brought by Mr Jacob Zuma to challenge the decision of the National Director of Public Prosecutions (NDPP) to charge him with corruption without hearing representations from him first.

The SCA judgement 9 written by Harms J) makes clear that the trial court erred by making findings on the merits of the allegations of a political conspiracy against Mr Zuma, when all it was required to do was to find whether these allegations were relevant to his case or not in order to decide whether the allegations had to be struck out or not. As it turns out, these allegations (said the SCA) were completely irrelevant to Mr Zuma’s case.

It follows from this that, as the trial judge recognised, ‘political meddling’ was not an issue that had to be determined (para 229 of his judgment). Nevertheless, a substantial part of his judgment dealt with this question; and in the course of this discussion he changed the rules of the game, took his eyes off the ball and red-carded not only players but also spectators. Lest his judgment be considered authoritative it will be necessary to deal with these matters.

This commendable approach was unfortunately subverted by a failure to confine the judgment to the issues before the court; by deciding matters that were not germane or relevant; by creating new factual issues; by making gratuitous findings against persons who were not called upon to defend themselves; by failing to distinguish between allegation, fact and suspicion; and by transgressing the proper boundaries between judicial, executive and legislative functions.

Nicholson, said the SCA, had wrongly placed a negative onus on the NPA to demonstrate that no political meddling had taken place – something that is unheard of in motion proceedings like these.

At the same time the SCA provided some clarity on the kind of independence enjoyed by the NPA in South Africa, stating that an Attorney General (or NDPP) is required by convention to make prosecutorial decisions without regard to political considerations and may not subject his discretionary authority to that of government. He or she is also not responsible to government to justify the exercise of his or her discretion because this political office has judicial attributes.

It confirmed – as I have long argued – that there is no contradiction between the Constitutional guarantee that the NDPP must act without fear, favour or prejudice, on the one hand, and the requirement that the Minister of Justice exercises final responsibility over the NPA on the other. As the SCA pointed out

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.

The judgement also deals a blow to Mr Zuma’s potential legal arguments about a permanent stay of prosecution as it makes clear that a “prosecution is not wrongful merely because it is brought for an improper purpose. It will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent, something not alleged by Mr Zuma and which in any event can only be determined once criminal proceedings have been concluded. The motive behind the prosecution is irrelevant because… the best motive does not cure an otherwise illegal arrest and the worst motive does not render an otherwise legal arrest illegal.The same applies to prosecutions.”

This means that all this talk of political conspiracy is irrelevant for Mr Zuma’s case. If there is a case to be answered – even if that case was brought with improper or political motives – Mr Zuma still needs to answer the case. He will not be less guilty (if he is indeed guilty) just because he was charged for political reasons. A guilty man remains a guilty man.

The SCA judgment therefore seems to represent a stunning blow to Mr Zuma’s arguments and his hints and dark mutterings of a political conspiracy. It makes – what seems to me at least – the sensible point that an accused cannot and should not escape prosecution because the decision to charge him was politically motivated – as long as there is indeed a prima facie case against him that needs to be answered.

At the same time the SCA judgement is careful to point out that Bulelani Ngcuka’s decision not to prosecute Mr Zuma might have been valid. Just because one person is guilty of corruption does not mean the person being corrupted is guilty of a crime because the state will have to prove that the latter person had the intention to be corrupted. As I have argued repeatedly, this will be the heart of any defense by Mr Zuma’s legal team if he is ever charged. In pointing out this obvious fact, the SCA again lambasted Nicholson for his weird approach to the law and the facts.

Once again, the ‘strategy’ involving Dr Maduna, Mr Mbeki and all the other members of cabinet as well as the causal connection between the Ngcuka decision and Mr Mbeki and the cabinet as found by the trial judge were not based on any evidence or allegation. They were instead part of the judge’s own conspiracy theory and not one advanced by Mr Zuma. Further, the finding, by implication or otherwise, that a non-party may have committed a criminal act where this was not alleged, where it was not in issue and without hearing that party is incomprehensible.

Why Ginwala and Motlanthe are dead wrong

Dec 9th, 2008
by Pierre De Vos.
158 comments

After re-reading Frene Ginwala’s report, it is quite clear to me that in her haste to protect the then Minister of Justice and the then President, she wrote a report riddled with inconsistencies and contradictions.  The President then decided to fire Pikoli and in doing so, may have misconstrued his powers in terms of the NPA Act.  He might well have acted ultra vires in doing so and Pikoli’s lawyers will have at least an even chance of winning a case if they wished to challenge this decision in court.

First, let us turn to dear Frene Ginwala – presumably like the then Minister and President, a disciplined member of the ANC – and her “Report”. This is of course not an independent Report, but a Report prepared by an ANC cadre. Remember, it was reported that Ms Ginwala travelled with Brigitte Mabandla on a flight from Cape Town to Johannesburg on 20 September 2007, two days after the Minister sent the illegal instruction to Vusi Pikoli to stop the arrest of Jackie Selebi. When asked about this in Parliament, the then Minister said she could not remember whether she had traveled with Ginwala, and she declined to answer a question about whether she had met with Ginwala in the days before or after this event.

She also declined to subject herself to cross examination before the Enquiry, which suggests that she knew her testimony would not stand up to scrutiny and that she would be pulled to threads under cross examination. Either Mabandla has a memory like a sieve (which is possible as it is rumoured that she is often tired and emotional), or she was lying through her teeth.

In any case, even Ginwala could not help but find at various stages of the Report that Vusi Pikoli’s had “impressed me as a person of unimpeachable integrity”; “impressed me as a man of unquestionable integrity, with passion to execute his constitutional responsibilities without fear, favour or prejudice”, and “impressed me as a person of unimpeachable integrity and credibility”. Yet she found at the same time that had facts about Pikoli’s refusal to accede to the President’s request not to arrest Selebi “been presented as the reason for the suspension, when the conduct would have held a real risk of undermining national security, I would not have hesitated to find the reason to be legitimate.”

Section 12(6) of the NPA Act makes clear that the NDPP can only be removed on stipulated grounds, including that he was no longer a “fit and proper person”. As Ginwala concedes, when deciding whether the NDPP is “fit and proper”, section 9 of that same Act stipulates that due regard should be given to his or her “experience, conscientiousness and integrity”.

But strangely, while she found that the NDPP was conscientious and had integrity,  she also seemed to find that he was “not fit and proper” to hold office because he refused to obsequiously adhere to the President’s dubious request not to arrest Selebi for at least two weeks for “national security” reasons. (In the event, Selebi was arrested later  -  by mere accident (?!) only after the Polokwane conference – and national security did not seem to suffer at all.) There was also no evidence given to the Enquiry that Pikoli’s actions actually threatened national security in any way. So let me get this straight: although possessing the qualities that makes a person fit and proper, he was not fit and proper because he refused to obey the President’s “request” not to arrest Selebi because maybe, just maybe, national security might have been threatened. Go figure.

Ginwala also found that Pikoli was not suspended because the government wanted to stop the prosecution of Selebi. Yet she found that the Minister had signed a letter instructing Pikoli not to arrest Selebi and that this instruction was illegal and may have constituted a criminal offense. She also found that the President requested Pikoli not to immediately arrest Selebi and then suspended Pikoli when he refused to give the President more than a week before arresting the Police Commissioner. The suspension occurred a day before the arrest of Selebi would have been effected by Pikoli.

The government then provided several bogus reasons for the suspension and proposed dismissal – all rejected by Ginwala as invalid reason for Pikoli’s dismissal – and studiously avoided mentioning Pikoli’s decision to arrest Selebi as a possible reason for his suspension and possible dismissal.  Yet Ginwala herself then found that because Pikoli had the cheek to assert his independence when requested not to proceed with the arrest of Selebi, he had failed in his duties and might therefore not be a fit and proper person.

She even suggested that Selebi did not have a right to present the President with the fait accompli, namely that he would arrest Selebi and that he was required first to inform the Minister and the President before getting the warrant for Selebi’s arrest and then had a duty to obey any request by the President not to arrest the Police Commissioner until such time as the President had taken the steps he might have claimed he deemed necessary to save us all from the national security catastrophe that would ensue. This does not seem to square with her earlier finding that the executive could not interfere with operational decisions of the NDPP.

These contradictions can only be wiggled out of if one makes the semantic argument – as Ginwala might well do – that government did not want to stop the (eventual) prosecution of Selebi – but merely the arrest of Selebi before the Polokwane conference or for some other vague reason regarding national security or the need to inform the tooth fairy. Ginwala is rather silent on this obvious point.

The Report also suggests that, when the President asked Mr Pikoli to suspend the execution of the warrants for two weeks, Pikoli should blindly have agreed to do so without question. But the President did not motivate his request for two weeks in any way and when Pikoli suggested one week instead, the President did not engage with him on the adequacy of his suggestion. As Pikoli’s lawyers point out:

[The President] did not say that a week would not be enough. The impression he created was that he would have preferred two weeks but that a week would do. There is no reason to believe that the President was overly concerned about the matter. …  When the Minister asked Mr Pikoli to resign on Sunday afternoon 23 September 2007, she did not suggest that it had anything to do with his failure to allow the President more time to create an enabling environment. She would have done so if it was a real concern at the time.

When the President suspended Mr Pikoli, he did not say or suggest in their meeting or in his letter of suspension that it had anything to do with Mr Pikoli’s failure to accommodate the need for an enabling environment. He would have done so if it was a real complaint at the time.

Government never raised this complaint in their public statements after Mr Pikoli’s suspension, in their founding statement in the enquiry, in their supporting affidavits or even in their affidavits in reply. The DG in the Presidency filed two affidavits but neither of them suggested any unhappiness about Mr Pikoli’s reluctance to delay the execution of the warrants for more than a week.

In other words, Ginwala “invented” this reason to make a finding adverse to Pikoli without this ever having been raised by the Minister, the President or anyone else in their respective offices and without this having been given as a possible reason for his suspension. There is of course a very good reason why these people never mentioned Pikoli’s refusal to stop the arrest of Selebi, namely such an admission would have been tantamount to an admission that Pikoli was suspended because he had refused to stop the arrest of Selebi. Ginwala in effect finds that this would indeed have been a valid reason for the suspending Pikoli, yet she found that this was not at all the reason why the NDPP was suspended. Go figure.

Second turning to President Motlanthe’s announcement: The President stated that “it should be noted that the requisite skills would, necessarily, include professional competence as well as those outlined by the enquiry, in particular, appreciation for and sensitivity to matters of national security” and then found that based on these circumstances Pikoli was not a fit and proper person. Once again, no mention is made of the content of what constitutes a fit and proper person as set out in section 9 of the NPA Act. He fails to deal with the assertion made by Pikoli’s lawyers that:

None of the criticisms of Mr Pikoli come close to impugning his fitness to hold the office of NDPP. They reflect a mere difference of opinion between the enquiry and Mr Pikoli about the way in which he should perform his functions as NDPP. They do not reflect on his fitness for office at all.

But Jacob Zuma and the ANC needed to get rid of Pikoli so that a pliant NDPP can be appointed to ensure the case against Mr Zuma is never brought to court. Mark my words,  unless Pikoli challenges and wins a case against the decision to fire him, the President is going to appoint a party hack to the position of NDPP and this party hack will decide not to pursue the case against Zuma.

NPA independence R.I.P.

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