Constitutional Hill

Vusi Pikoli

National security, the last refuge of scoundrels?

Dec 8th, 2008
by Pierre De Vos.
100 comments

At the heart of the Ginwala Commission of Enquiry Report and the decision by President Kgalema Motlanthe to recommend the removal from office of Vusi Pikoli, the National Director of Public Prosecutions, is a rather troubling interpretation of what is required to safeguard the constitutionally protected independence of the NPA.

The Report correctly points out that the Constitutional Court had held that s 179(4) of the Constitution, providing that national legislation must ensure that the prosecuting authority exercises its functions ‘without fear, favour or prejudice’, amounted to ‘a constitutional guarantee of independence’. It also points out that the Court had further noted that ‘any legislation or executive action inconsistent therewith would be subject to constitutional control by the courts’ and concludes that “[a]ny attempt by the Minister of Justice to  influence prosecutorial discretion in individual cases would therefore be contrary to the Constitution.” But, the Report then states:

Sufficient attention has not been paid to the requirement of democratic accountability of the prosecuting authority. In focusing only on independence from political interference they have erred in conflating freedom from control with freedom from accountability. Further, scant attention has been paid to the nature, content and ambit of the “final responsibility” of the Minister, and even less to the relationship between this responsibility and the prosecutorial independence of the NDPP.

The Report then refers to chapter 3 of the Constitution, which deals with the principle of co-operative government between the national, provincial and local spheres of government and all organs of state within those spheres, and argues that the NDPP has an extraordinary onerous duty to co-operate with the President, the relevant Minister and other organs of state such as the South African Police Services.

If this interpretation is correct, it would place a very heavy burden on the NPA to co-operate with the executive when  deciding to issue warrants for the arrest of high ranking state officials or to prosecute them. In the case of Selebi, the Commission found its own interpretation of the Constitution and the NPA Act required the NPA boss not only to have informed the Minister and the President before requesting that a warrant of arrest be issued for the National Police Commissioner, but also to have acquiesced to a request by the President not to proceed with executing the arrest until such time as the President had taken the steps he deemed necessary for what he deemed to be in the interest of “national security”.

This seems like a controversial and rather novel interpretation of the Act and the Constitution as the  NPA Act does not explicitly require the NDPP to inform the Minister – let alone the President – of any actions to arrest anyone – unless he or she explicitly asks for such information.  It is not clear that the NPA’s constitutional independence, safeguarded in the Constitution, can be squared with this interpretation that in effect gives the President a veto power over decisions to issue arrest warrants against high placed government officials merely because the President cites issues of “national security”.

It is also not clear that chapter 3 of the Constitution applies to an independent body like the NPA as this chapter deals with relations between the three spheres of government. It is my opinion that the heavy reliance placed by the Ginwala Commission on chapter 3 of the Constitution completely misconstrues the nature of chapter 3 as well as the constitutional requirements for an independent NPA. Her interpretation of the NPA’s Constitution acknowledges the independence of the NPA on the one hand, then takes it away with the other.

Moreover, there is a good reason that “national security” is sometimes called the last refuge of scoundrels. It is such a vague concept that it would potentially give the President or the Minister extraordinary power to intervene in the decisions of the NDPP and  might well place the NDPP in the untenable position of always having to worry whether his decision might be construed by the politicians as having national security implications on their say-so.

Given the fact that Ginwala did not find that Pikoli’s actions did indeed hold any  threat for national security, the decision by the President to fire Pikoli seems like  setting a dangerous precedent as a future President will now be able to pressure the NDPP when he or she embarks on a course of action not favoured by the President by making vague assertions of national security being at stake.

It is also worrying that Ginwala expressed concern that Pikoli had not fully appreciated the sensitivities of the “political environment” in which the NPA needs to operate, and his responsibility to manage this environment. An appreciation of the “political environment” does not seem to sit easily with a duty to exercise one’s duties without fear, favour or prejudice.

Ginwala then continues:

Adv Pikoli needs to always recognise the final responsibility of the Minister and should have pro-actively made her aware of all matters of a sensitive nature that the NPA became aware of in the course of its functions, and fully and regularly briefed her on the progress of high profile investigations and prosecutions.

This obligation on the part of the NDPP  is not found in the Constitution or the NPA Act and was invented by Ginwala. It stems from her view that the Minister has to exercise final responsibility over the NPA and that this means more than set out in the Act. If a NDPP could be fired for not informing the Minister of something she or he though was important, the NDPP would be busy all day long writing reports to the Minister. This is not what the Act requires and, I would submit, it could not have been intended to require that as the Act must be read in the context of the Constitution that guarantees the independence of the NPA and Ginwala’s interpretation would make the Act unconstitutional.

But the report does contain rather devastating findings – although these findings are not followed to their logical conclusion. Thus Ginwala analises the letter signed by the then Minister of Justice a few days before Pikoli was suspended and states that:

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 Minister has since on affidavit said that it was not her intention to stop Adv Pikoli from discharging his duties or performing his functions as the NDPP. Assuming this is correct, 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.

So, Ginwala in effect found that there was an illegal and criminal order to Pikoli to stop the prosecution of Selebi. This order was drafted by the DG and signed by the Minister. Yet she also finds that there was no reason to believe that the President suspended Pikoli because of the prosecution of Selebi. What I wonder is: who decided that this letter had to be written? Was the President or his advisers involved? Would Ginwala have been forced to come to a different conclusion if the question was posed differently, namely, whether the government wanted to fire Pikoli because he issued an arrest warrant for Selebi? These questions are not answered in the report. Could this be because the answers would not have favoured the man who appointed Ginwala and belonged to the same political party of which they are both disciplined members?

It is clear that the suspension happened shortly after Pikoli informed the Minister and the President that a warrant of arrest had been issued for Selebi. The letter was then written and shortly afterward Pikoli was suspended. It seems to stretch the bounds of credulity to argue – like Ginwala does by implication – that the one had nothing to do with the other. There clearly was a link. The only question is exactly what this link was.

So maybe Mbeki and his Minister did not interfere with the prosecution of Selebi. They (the Minister? the DG? Mbeki?) “just” interfered with the attempt to arrest Pikoli. This is still a criminal offense, but maybe not as serious as the first charge of trying to stop the prosecution altogether….

Should Pikoli be re-instated pronto?

Dec 5th, 2008
by Pierre De Vos.
85 comments

If a news report in today’s Mail & Guardian is correct, Vusi Pikoli should immediately be re-instated as National Director of Public Prosecutions. According to the Mail & Guardian the confidential report of the Ginwala commission clears former president Thabo Mbeki of an abuse of executive power, while at the same time exonerating Pikoli. Apparently the report recommends his reinstatement as national director of public prosecutions.

Apparently the report finds that Mbeki did not interfere in the arrest and prosecution of police National Commissioner Jackie Selebi.

Our investigation shows that former speaker Frene Ginwala and her panel rejected suspended prosecutions boss Vusi Pikoli’s contention that Mbeki colluded with senior government officials to save Selebi’s skin. Instead, the report says justice department boss Menzi Simelane misled former justice minister Brigitte Mabandla and withheld information from her and the inquiry.

It further finds that: Simelane misled Mabandla, although she trusted him; Pikoli was lax in his handling of security clearance issues; and Pikoli gave former Scorpions boss Leonard McCarthy too much freedom.

It is difficult to analyse (or critique) these findings without sight of the full report. But a few preliminary observations are in order.

First, if the report does indeed find Pikoli continues to be a fit and proper person as required by the National Prosecuting Authority Act, we would then be able to conclude in hindsight that there was no reason for the then President to have suspended Pikoli and that the President had made a mistake in doing so.

While section 12 of the NPA Act allows the President to suspend the head of the NPA pending an inquiry into whether he is a fit and proper person, this suspension must be linked to a reasonable belief by the President that an inquiry could find that the NDPP is not fit and proper to hold office. If Pikoli is indeed exonerated by the report, it would constitute a slap in the face of Mbeki (or his legal adviser),  as it would suggest that he was wrong to believe (if he ever did believe) that Pikoli’s actions made him not a fit and proper person to hold office.

Second, if the Ginwala inquiry had failed to obtain evidence that Pikoli was not fit and proper, it would be impossible for President Motlanthe not to reinstate him as NDPP. This is because the NDPP can only be fired on the basis of one of the objective factors set out in section 12 of the NPA Act. If an inquiry has now found none of these objective factors existed, then there was no basis for him to be fired and he would have to be reinstated immediately. Failure to do so might be construed as an attempt to interfere with the independence of the NPA and the NDPP as guaranteed in the Constitution and the NPA Act.

Third, if the Mail & Guardian report is correct, the position of the Director General of the justice department must be in serious jeopardy. If I was the director general I might feel aggrieved about such a finding, given the fact that the then Minister of Justice, the President’s legal adviser (who, we now know, played an important part in persuading – or “assisting” – Mokotedi Mpshe to cancel the warrant for Jackie Selebi’s arrest) and the President himself had not testified before the Commission.

If I was Simelane I might well have felt that I had been made the scape goat for the mess that led to the suspension of Pikoli. I would also wonder what happened on the day before Pikoli was suspended and what was said that day between the then Minister of Justice (apparently exonerated by the report) and Ginwala when they travelled together on an SAA flight to Pretoria.

However, one would have to wait and see how persuasive the actual report is, before making any definitive comments about its credibility and before casting aspersions on Ginwala.  It might well be that her findings are well reasoned and well justified and that it shows convincingly that the director general was the villian in this drama. Who knows. One thing is certain, the sooner the President releases the report the better for all of us.

    Fit and proper or not, that is the question

    Nov 25th, 2008
    by Pierre De Vos.
    116 comments

    Mr Jacob Zuma has not been found guilty of any crime and has a constitutional right to be presumed by our courts to be innocent until proven guilty by the state beyond reasonable doubt. We must never forget that and must respect our courts to come to a conclusion about Mr Zuma’s guilt or innocence after the state has had the opportunity to present all the relevant evidence to that court.

    There is, however, a difference between the question of whether Mr Zuma is guilty of corruption in terms of the Corruption Act on the one hand, and the question of whether Mr Zuma is the best person to lead South Africa after the next election, on the other. The first is a criminal matter, requiring an extraordinary burden of proof. The latter is a political, ethical and moral matter requiring wisdom, a moral compas and common sense.

    As an accused person (or a person who might again soon be an accused) Mr Zuma has every right to use the vast resources at his disposal (paid by us, the taxpayers) to try and prevent the state from getting to that point where it can put before a court the evidence it believes can secure a conviction against him.

    In that regard, he is in an enviable position as he can pay extremely good lawyers millions of Rands to fight the state tooth and nail to prevent them from ever getting that opportunity. An ordinary accused person would long since have been tried and either acquitted or convicted because such a person would not have been able to pay such vast sums of money to lawyers to challenge the state on every technical point imaginable. But that is Mr Zuma’s right and I do not begrudge him that luxury that comes with being a rich and influential man.

    As a politician, this course of action should, however, not be without consequences – given the fact that another man (Schabir Shaik) has been sentenced to a 15 year jail term for corrupting Zuma and soliciting a bribe on his behalf from an arms company.  That conviction has placed a huge question mark over Mr Zuma’s fitness to hold public office – let alone his fitness to be President of South Africa. That is why I believe it was untenable and inexplicable – as judge Nicholson has pointed out in his recent judgment – that Mr Zuma was initially not charged alongside Shaik.

    The initial decision by Bulelani Ngcuka to announce that there was a prima facie case against Zuma but that he would not be charged constitutes a grave dereliction of duty on the part of Ngcuka and created the perception that he was not making decisions about who to prosecute without fear, favour or prejudice – as he was constitutionally required to do. It was only after Ngcuka was replaced by Vusi Pikoli and Shaik was convicted that the NPA decided to do the right thing by charging Zuma, thus allowing him to face the same charges on which Shaik was convicted.

    In the absence of an acquittal by a competent court of law, the question of whether Mr Zuma is a corrupt man will linger on as only a court (and not the ANC NEC or anyone else) can clear Mr Zuma’s name. The sooner he faces these charges and is either convicted or acquitted the better for Zuma and the better for South Africa.

    If I was Mr Zuma and if I was innocent, I would be begging the NPA to charge me so that I could clear my name once and for all. This is because no less than three different courts have made very serious legal and factual findings that suggested Mr Zuma is unfit for public office. Of these, the most important judgment is probably that of the Supreme Court of Appeal (SCA) in the case of Shaik and Others v The State.

    First, the SCA found that “[i]t is not in dispute that Shaik gave benefits which were not legally due to Zuma at the time that Zuma held public office, being initially that of MEC for Economic Affairs and Tourism in KwaZulu-Natal and later Deputy President of the Republic of South Africa (par 65)” and then concluded that:

    In our view the State successfully proved that Shaik or one or more of the appellant companies made payments to or on behalf of Zuma in the total amount of R1 249 244.91 over the period 1 October 1995 and 30 September 2002 (par 84).

    Why did Shaik make these payments? Well, the SCA found in this regard as follows:

    Plainly, Shaik did not simply direct relevant correspondence to the appropriate quarters as a sort of go-between. He obtained Zuma’s intervention in order to advance Nkobi’s business (par 123) … On a conspectus of all the evidence there is, in our view, only one reasonable inference to be drawn. It is that, in making the payments in issue (whether as inducement or reward), Shaik intended to influence Zuma, in furtherance of the business interests of Shaik and his companies, to act in conflict with the duties imposed upon Zuma by the terms of sections 96(2) and 136(2) of the Constitution (par 131).

    This means that the SCA has confirmed that money was given by Shaik to Zuma to get Zuma to try and use his influence as a politician to further Mr Shaik’s business interest. The SCA also found clear evidence that Mr Zuma had obliged in this regard. Although the SCA was careful not to make any finding as to whether Mr Zuma had the intention of receiving this money and doing the favours for corrupt purposes as defined by the Act, it did find that Zuma was involved in a serious way in the corruption for which Shaik was found guilty and sentenced to 15 years imprisonment. Most politicians in a democracy would not have survive such a factual (not a legal) finding by a court. The fact that Mr Zuma has so far done so, says much about Mr Zuma’s political skills in getting South Africans to forget about these inconvenient factual findings.

    On the third count of corruption on which Mr Shaik was convicted, the SCA found that an encrypted fax setting out the terms of the bribe to be paid to Zuma by Thint was genuine and admissible as evidence in the Shaik case. In doing so, it indirectly implicated Mr Zuma in the soliciting of a bribe from an arms company.

    The fax, the correspondence, Shaik’s false evidence, the service provider agreement and the payment in terms thereof   cumulatively, in our view, fully justified the finding of the court below that it had been proved beyond reasonable doubt that what Shaik described as a request for a donation to the Jacob Zuma Education Trust was in fact a request for the payment of a bribe to Zuma. As was found by the court below the service provider agreement was in reality nothing more than a vehicle to give effect to the request recorded in the encrypted fax and to disguise the fact that the amount of R249 925, paid in terms of the service provider agreement, was intended to be a bribe (par 203).

    Mr Zuma chose not to testify at his erstwhile friend’s trial, which was probably a wise legal move, given the fact that he is still potentailly facing charges about the same bribe. But politically, it does leave many very, very awkward questions for Mr Zuma to answer, including questions about his role in the soliciting of the bribe. These questions are made even more awkward by the fact that Zuma did meet representatives of the arms company from whom the bribe was solicited and then misled Parliament about this meeting by giving the impression (while leaving room to wiggle out of the misleading statement) that he never met with the arms company representative at all.

    It is also interesting to note what the SCA further had to say about this fax and the bribe that was solicited on behalf of Zuma:

    In terms of the fax Zuma confirmed Shaik’s request in a code devised by Thétard and evidently explained to Zuma by Shaik. The appellants submitted in the court below that Shaik could have misrepresented the meaning of the code to Zuma; that there is consequently a reasonable possibility that Zuma did not know of  the bribe and did not agree to the bribe; and that in order to succeed the state had to prove that Zuma knew of the request and agreed to accept the bribe. The court below rejected this argument on the ground that Shaik testified that Zuma knew what was being discussed; that Shaik would not have misrepresented the position as there was a risk that his deception would subsequently be revealed; and that it was unlikely that a dishonest broker would arrange a meeting between the two parties that he was deceiving (par 204).

    This passage reminds us that the High Court had found that Zuma must have known about the soliciting of the bribe. The SCA did not find it necessary to make a finding on this point, but politically this places a very serious question mark over Mr Zuma’s honesty and integrity as a court has found that he knew about the soliciting of a bribe on his behalf.

    The only way for Mr Zuma to clear his name is to meet the evidence presented by the NPA in court. However, he has chosen (as is his legal right) to try and avoid his day in court by all means necessary – including by bringing applications to challenge the legality of the decision to charge him. He has also tried everything to prevent the state from building a case against him by trying to prevent the NPA from procuring evidence about his meeting with the arms representatives from Mauritius. He also tried to prevent the NPA from making use of evidence secured in raids on his own premises and the premises of his lawyer in any possible trial. He failed on both the latter counts.

    Mr Zuma was treated in a tardy fashion by the NPA when they decided to charge Shaik and not him. Although no court has found that his right to dignity or a fair trial has been infringed, several courts have made factual findings suggesting that he does have a prima facie case of corruption to answer. Legally, his best option is therefore to try and prevent a trial from taking place at all.

    But politically the question does arise whether one would want to vote for a President against whom a prima facie case of corruption exists. The only way for Mr Zuma to wiggle out of this very difficult situation is to argue that he is being charged unfairly for political reasons. Others have also been involved in corruption and have not been charged, so the argument goes, so it is unfair for him alone to face the music. This is exactly what Mr Zuma and his supporters have done rather successfully over the past few years.

    A few questions arise from all of this: should we as a nation forgive Mr Zuma for his indiscretions (which might or might not amount to criminal conduct carrying a 15 year mandatory sentence) because he might have been singled out for prosecution and if we do, what would that say about our collective morality? Should we not rather insist that an independent and impartial NPA vigorously pursue those other cases of corruption alluded to by Mr Zuma and others? Mr Zuma has said if he is charged he will reveal “the truth” about the arms deal, so should the NPA perhaps enter into a plea bargain with Mr Zuma in exchange for his co-operation to catch the bigger fish? And who are these bigger fish? Should we vote for a President who says he has evidence of corruption which he will reveal only if he is prosecuted? Will such a President uphold the law and could he be trusted?

    I suspect how we answer these questions will say much about our own ethical commitments and our vision of what kind of country we wish South Africa to be. I fear, though, that I might not like the answers given by many of my fellow South Africans. That may be the tragedy we are living through now.

    Vusi Pikoli, the NPA and the new President

    Sep 23rd, 2008
    by Pierre De Vos.
    31 comments

    I was quite startled and shocked by the statement made by ANC Secretary General, Gwede Mantashe on Saturday during the press conference where he announced that the ANC had “recalled” President Thabo Mbeki. It was as if Mr. Mantashe had not read or understood the Nicholson judgment or if he had, had decided not to respect the whole judgment. It is difficult not to conclude from his statements that the ANC NEC had decided that in order to protect Mr. Zuma, it would be necessary to break the law and to commit a crime for which one could be sent to jail for ten years. Was this really what the ANC NEC had in mind or was Mr. Mantashe just misguided?

    Mantashe said the decision to fire President Mbeki was taken “as an effort to heal and unite the African National Congress” and that it was a political way to deal with the implications of Pietermaritzburg High Court Judge Chris Nicholson’s ruling that Mbeki may have been involved in a political conspiracy against Zuma. According to the Mail & Guardian he said:

    “The biggest worry of the ANC had been the question of a reversal of the closure of the chapter that the Nicholson judgement seemed to have promised.” The National Prosecuting Authority’s decision to appeal the judgement had become a worry, said Mantashe. “If pursued it will continue to be a point of division for the ANC.”

    So let me get this straight: because an appeal of the Nicholson judgment would perpetuate division in the ANC, the President had to be fired in order to stop the appeal. What are these people smoking? How exactly will they stop the appeal by the NPA? Surely the only way would be to order the acting or permanent Nation Director of Public Prosecutions (NDPP) to stop the appeal or be fired?

    As the Nicholson judgment made very clear – relying on precedent of the Constitutional Court – the Constitution and the NPA Act guarantees the independence of the NPA and of the NDPP, who must make decisions about who to charge and which cases to appeal based on legal principles and the values of the Constitution and not, I repeat not, on the basis of what may or may not be in the best interest of the ANC.

    If an appeal of the Nicholson judgment will perpetuate divisions within the ANC, tough luck. The ANC must deal with their divisions internally by, for example, ditching Jacob Zuma as its Presidential candidate. The ANC cannot deal with its divisions by interfering with our constitutional structures and it is thus legally prohibited from interfering with the decision of the NPA to appeal a judgment which many legal experts feel the NPA has a very strong chance of winning on appeal.

    In as much as Mr. Mantashe is suggesting that by firing the President, the ANC would be in a position to stop the appeal by the NPA, he is suggesting that the new ANC President or a new Minister of Justice will be able to stop the NPA from doing its job, and will, in effect, be in the position to commit a crime for which he could be sent to jail for 10 years.

    Unless of course he was referring to the fact that the new President will soon receive a report from Frene Ginwala in which she might or might not recommend the firing of Vusi Pikoli, who is still legally the NDPP. Although – as the Nicholson judgment made clear – Ms Ginwala will be legally and constitutionally misguided in making a finding that Vusi Pikoli is not a fit and proper person, she is a loyal member of the ANC. This means she might be tempted to ignore the law and cook the books to present the new ANC President with the opportunity to recommend the firing of Vusi Pikoli to the National Assembly who could then rubber stamp this abuse of power.

    Once the National Assembly has then fired Mr Pikoli the new President could then appoint a loyal ANC cadre as NDPP – someone who will not fulfill its task without fear favour or prejudice as required by the Constitution – who will miraculously decide not to appeal the Nicholson judgment and not to charge Mr Zuma.

    But of course, the Nicholson judgment did rather controversially find that a decisions not to prosecute anyone was reviewable in terms of the Promotion of Administrative Justice (PAJA) Act, so we can take that decision on review to show that it was not a rational decision as it was arbitrary, capricious or based on mala fides (bad faith). If the decision by a new NDPP is so blatantly in conflict with the Constitutional  and NPA Act requirement to act without fear, favour or prejudice, it might also be set aside as unconstitutional or in contraventions of the NPA Act.

    So, if Gwede Mantashe and the ANC NEC think they can get this case to go away merely by firing the President, they are deluded. If this is really what Mr Mantashe meant, the new ANC guys are then also far more dangerous for our democracy than I had previously thought. Really, someone should whisper in their ear that (even) the ANC must abide by the Constitution and the law.

    If they do not want to accept the law, they can change the law or the Constitution and we can then decide at the next election to throw them out of office. That is how democracy works.

    Quo Vadis Ginwala Commission?

    Sep 16th, 2008
    by Pierre De Vos.
    21 comments

    I see  Frene Ginwala, chairwoman of the inquiry into suspended national director of public prosecutions Vusi Pikoli’s fitness to hold office, yesterday said Judge Chris Nicholson’s judgment in African National Congress (ANC) president Jacob Zuma’s case “should not have any bearing” on her inquiry. She also said “the judgment should not have dealt with any aspect of my inquiry”.

    Joel Netshitenzhe, the head of the Policy Unit in the Presidency, further argues this morning that as the Constitution requires the Minister of Justice to exercise final responsibility over the NPA, it means that judge Nicholson may have been wrong in saying there should have been no relationship between the Minister and the National Director of Public Prosecutions (NDPP). This, he argues, is because “if the judgment is taken to its logical conclusion, any interaction with the NPA on this or any other case by the executive, a political party or any other external authority cannot be entertained”.

    These comments raise serious questions about the appropriate relationship between the Minister of Justice and the NDPP. While the executive obviously feels that the responsibility of the Minister requires her to interact quite vigorously with the NDPP, judge Nicholson seems to suggest that all the Minister can do is to approve the prosecution policy in consultation with the NDPP and to receive information and reports from the NDPP in accordance with the NPA Act.

    On this score judge Nicholson merely reiterated what many of us have said in the past, namely that the Minister or the President has no right to interfere in the work done by the NDPP or in decisions of individual cases. They also have no right to be informed about individual decisions to prosecute or not to prosecute anyone or to be asked for permission to do so – as some suggested regarding the Jackie Selebi prosecution.

    It is not clear whether Frene Ginwala or Joel Netshitenze – even now – understand this very basic point. Ms Ginwala is therefore wrong to suggest that the judgment has no bearing on her enquiry. To quote form it:

    [I]t is clear that there is no attempt by Mr Pikoli to deal with the allegation of the blatant interference by the Minister and the fact that Mr Pikoli asserted his rights of independence. There is no refutation that the Selebi warrants were cancelled by Mr Mpshe after political interference and that Pikoli was suspended because he refused to do so. There is an admission that Pikoli reviewed only Selebi’s case, at the request of the Minister of Justice. The other admission relates to the fact that the President suspended Mr Pikoli as NDPP, stating that there had been an irretrievable breakdown in the working relationship between Mr Pikoli and the Minister. . .

    The NDPP states unequivocally that the NDPP Mr Pikoli was suspended by the President because of a breakdown in his relationship with the Minister of Justice. There should be no relationship with the Minister of Justice – certainly insofar as his decisions to prosecute or not to prosecute anybody from the Commissioner of Police downwards. All that is clear from the Constitution, the NPA Act and the various prosecution policies, directives and codes of conduct. The suspension of the National Director was a most ominous move that struck at the core of a crucial State institution. Of importance to the applicant was the fact that Pikoli’s replacement, Mr Mpshe, who had to decide his fate, must have realized that to disobey the executive would in all probability ensure his own professional demise.

    These extracts make it clear, really, that the President should never have suspended Mr Pikoli and that the suspension was probably illegal and/or unconstitutional. It might even be that the provisions in terms of which Pikoli was suspended are unconstitutional. It also makes it clear that one of the grounds for the suspension – a breakdown of the relationship between Pikoli and the Minister – was itself on its face based on a misconception of the  appropriate relationship between the executive and the NDPP.

    Ginwala therefore seems wrong to suggest that the judgment has no bearing on her work. It seems to me the judgment has made a finding that Pikoli should never have been suspended and that the reasons given by the President for the suspension was in itself legally highly problematic and really demonstrated the unconstitutional and illegal interference in the work of the NDPP.

    If one follows the logic of the judgment, the Ginwala Commission must surely be considered to be dead in the water. It was asked to investigate something that was constitutionally and legally none of its business and its very activities have been called into question by this judgment. One could even say that the judge has suggested its mere function – under the terms of reference given to it by the President – breached the Constitutional requirement safeguarding the independence of the NPA.

    I wonder whether Ms Ginwala made the statement she made because she was on the point of reccommending the firing of Pikoli. If she was, or if she proceeds with such a reccommendation, she will have serious egg on her face. Come to think of it, a bit like the President.

    Zuma 1 – Mbeki 0

    Sep 12th, 2008
    by Pierre De Vos.
    67 comments

    After listening to most of the judgment by Justice Chris Nicholson this morning, my first response is that this  judgment is a stinging slap in the face of President Thabo Mbeki, his Minister of Justice, the entire cabinet and – perhaps with the exception of Vusi Pikoli – the National Directors of Pubic Prosecution.

    A court has now for the first time made a finding confirming what many people have suspected, namely that Mbeki and his cabinet have interfered in the decision to prosecute Zuma to gain a political advantage in a political battle for the position of ANC President and that the constitutionally guaranteed independence of the NPA has been fatally breached in the process.

    Justice Nicholson has confirmed that the NPA should act without fear favour or prejudice when deciding on whether to prosecute and individual and that it has failed to do so in the case of Zuma. He seemed to suggest that the NPA Act, which allows for the National Director to be fired by the President, may well be unconstitutional and that the President has abused his power and breached the Constitution by acquiescing in the undermining of the independence of the NPA.

    President Mbeki has in effect been found to have breached the Constitution.

    In an ordinary democracy, a President would find it difficult to survive such a rebuke from a court. President Mbeki’s position has really now become untenable and if he had any honour he would resign. The judgment would also rekindle calls by some in the ANC and in the Alliance for President Mbeki to be fired and it will be interesting to see how this plays out politically.

    Mr Zuma is of course not in the clear, as the judge made it clear that his judgment in no way comments on the advisability of a decision of the NPA to re-charge Zuma or of the chances of success for an application for a permanent stay of prosecution.

    Even if Zuma is not re-charged he will obviously still have an ethical (if not a legal) cloud hanging over his head and at the very least he will have to try and show to the nation why he would not have been found guilty had he been charged. Otherwise most of us will continue to wonder whether he might not have been corrupt after all and might not have given an opening to President Mbeki to abuse the system to get rid of him.

    But the decision today strengthens both his political and legal hand. Politically, his claim of a political conspiracy has in effect been vindicated by a court. He must now be odds on favourite to become President of South Africa next year. Legally the judgment seem to strengthen the argument that he would not be able to get a fair trial because of the political interference in the case (although this would still be a difficult argument to sell to a court.

    After re-reading the case I will comment further on the stunning events of the day but if I was a Jacob Zuma supporter I would be off to buy a crate or two of beer for a long night of celebration.

    Ginwala inquiry: state clutching at straws?

    Jul 8th, 2008
    by Pierre De Vos.
    89 comments

    At first glance the nature of the cross examination of Vusi Pikoli by the state’s counsel at the Ginwala Commission of Inquiry the past few days seems puzzling.

    According to Independent Online, this morning during cross examination counsel for the state slammed the plea deals implicating National Police Commissioner Jackie Selebi in corruption as “flawed”, “unlawful” and “reading like a fairytale”. Counsel for the state, Seth Nthai SC, also strongly suggested this morning that the magistrate who sanctioned the Scorpions’ deals with self-confessed drug smugglers Glenn Agliotti and Clint Nassif had “made a mistake”.

    Nthai earlier suggested that Selebi’s prosecutor, advocate Gerrie Nel, should face disciplinary action over the Nassif and Agliotti plea deals. Nel will be Pikoli’s next witness and is expected to give detailed evidence about why the Scorpions elected to make the Agliotti and Nassif deals. When Pikoli this morning denied any suggestion that the deals were improper and said he took responsibility for them, Nthai said: “Then I’m sure you will go down with him (NEL)”.

    These attacks on Pikoli make sense if one is aware of the relevant sections of the law that would make it very difficult indeed to legally remove Pikoli from office for entering into or endorsing a plea bargain. The only hope for the state is to make a case that Pikoli acted in a grossly irresponsible or corrupt manner.

    Section 179(4) of the Constitution and section 32 of the NPA Act makes clear that the National Director of Public Prosecutions (NDPP) must exercise his or her powers without fear, favour or prejudice. The Constitutional Court has confirmed that the NDP’s independence is therefore guaranteed and that the executive may not interfere with individual decisions made by the National Director – even when such decisions are unpopular, unwise or viewed as wrong or even flawed.

    In terms of section 12(6) 0f the NPA Act, the NDPP can be removed from office on the basis of one of four objectively determinable grounds, but the terms of reference of the Ginwala Commission refers to only one of these grounds, namely whether the NDPP is still “a fit and proper person to hold the office concerned”.

    Section 9(1)(b) of the NPA Act requires that the candidate “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.” None of the allegations against Mr Pikoli relate to his experience, but both could, potentially, impact on his conscientiousness or integrity.

    In case law dealing with the striking of attorneys or advocates from the role, South African courts have made clear that what was required to be a “fit and proper person” was to be honest and conscientiousness, which means a person must have the willingness and ability to perform with the required skill and the necessary diligence. Integrity is remaining honest – not lying, stealing or otherwise acting corruptly.

    Section 105(A) of the Criminal procedure Act states that when a prosecutor enters into a plea bargain he or she must consider, at least, the nature of and circumstances relating to the offence; personal circumstances of the accused; previous convictions of the accused, if any; and interests of the community. The relevant court will then have to confirm the terms of any plea bargain, so the final say is not in the hands of the prosecutor or the NDPP, but in the hands of a magistrate or judge.

    As a submission of SAIFAC to the Ginwala Commission has made clear, the NDPP could only be legally removed from office for entering or endorsing a plea bargain if he acted unconscientiously or without integrity. There would have to be very serious mistakes or repeated failures before he could possibly be removed. The errors must relate to competency or work ethic, not to differences of strategy. Either that, or the state would have to show that Pikoli entered into or endorsed a plea bargain in bad faith or for a corrupt reason.

    No wonder counsel for the state is trying to suggest that the plea bargains was more than a mere mistake, but was indeed a flagrant dereliction of duty or even an unlawful act. But the state has a serious problem with this line of reasoning, because the plea bargains were endorsed by both the court and by the acting NDPP, Mokotedi Mpshe.

    One may well disagree with either the decision of the court or the acting director, but it would be almost impossible to show that the entering into plea bargains that were endorsed by the courts were such a flagrant dereliction of duty that it warranted removal from office. Even worse, if this was such a terrible thing, why was the acting director not removed as well, given the fact that he had endorsed these plea bargains?

    The histrionics of the Advocate Nthai during his cross examination of Pikoli is therefore understandable. It suggests that he is clutching at straws and that he is trying to intimidate Mr Pikoli because he does not really have a legal leg to stand on. Of course, whether Frene Ginwala will understand and apply the law is another matter. Only time will tell.

    Spurious case against Vusi Pikoli?

    May 12th, 2008
    by Pierre De Vos.
    17 comments

    The more I find out about the suspension of Vusi Pikoli, the more it seems as if the case presented to the Ginwala Commission is nothing more than an ex post facto fabrication to cover up the illegal and unconstitutional actions of the Minister and the President. Nothing shows this more clearly than the fact that the President has consistently lied to the nation about Jackie Selebi.

    Shortly after losing the ANC Presidency at Polokwane in December last year, President Thabo Mbeki told reporters that he could not suspend National Police Commissioner Jackie Selebi because he knew nothing of any wrongdoing on the latters part.

    “I have said this before, many times, that if there was anybody who has information that shows that National Commissioner Selebi has done wrong things, I would act on it. Nobody came to me,” Mbeki said.

    Sadly, he was lying through his teeth. This is very clear if one peruses a letter which the National Director of Public Prosecutions, Vusi Pikoli, had sent to President Mbeki on 7 May 2007 – almost eight months previously – to inform the President of serious allegations that incriminated the Police Commissioner in bribery and corruption. The letter also stated that Pikoli intended to seek a search warrant to obtain information germain to the investigation against Selebi.

    This letter – now available on the Internet – sets out in detail the train of events that led the NPA to investigate Selebi including the following rather incriminating facts:

    • When Jackie Slebi became aware that Glen Agliotti’s cell number appeared in the files of investigators into the murder of Brett Kebble, he phone Mr Agliotti in the presence of the investigators to warn him about this;

    • Phone records show many suspecious calls between Jackie Selebi and persons connected to Brett Kebble’s murder before, on the night and after the murder;

    • Glen Agliotti – who was suspected of drug smuggling and murder and has now plea bargained and confessed to the former – kept a diary which contains many references to meetings with one “Jackie”, referring to the Police Commissioner, and that he had phoned the police Commissioner more than 50 times;

    • Sources alleged that Selebi met with the three suspects in the Kebble murder case on several occasions to discuss progress (or lack thereof) with them;

    • Mr Agliotti – fearing for his life after his arrest for the murder of Brett Kebble – had offered to make a statement to the effect that he had had a generally corrupt relationship with Jackie Selebi for which Mr Selebi had received about R1 million;

    • That Mr Selebi was officially under investigation by the Scorpions in terms of section 28(1) of the NPA Act.

    The President therefore knew by May 2007 about the extremely serious allegations against the Police Commissioner yet he claimed several times that no one had brought any information in this regard to him. He then suspended Pikoli four days after a warrant of arrest was issued for Selebi and his Minister is now trying to argue that he was merely acting in the national interest to protect national security.

    But the NPA Act does not allow the President to suspend or fire the NPA boss except for misconduct, incapacity, or if he is not a fit and proper person anymore. The latter is a legal turn of phrase which denotes integrity and character. If Pikoli had obeyed the illegal and unconstitutional instruction by Justice Minister Brigitte Mabandla to stop his arrest of Selebi, he would have acted in a way that would have allowed for his suspension.

    By refusing to do so, he showed exactly that he was indeed a fit and proper person and that he would rather obey the law and the Constitution than the Minsiter and the President.

    When the President says in his letter to Minister Mabandla that he had constitutional duties regarding the National Commissioner of Police, he is merely stating the obvious, namely that he can appoint and also suspend the Police Commissioner. He himnself cannot decide whether the commissioner should be arrested or not. His letter seems to wrongly suggest that because the NPA prosecutes people on behalf of the state “represented by our duly elected government”, this government can interfere in decisions about prosecution – which it decidedly cannot do without facing the option of a 10 year prison sentence.

    Unless dramatic evidence surface to show that Pikoli is involved in nefarious activities of his own or that he refused to provide the Minister with sufficient information about his actions, there is no way that the Ginwala Commission can make a recommendation that he should be fired.

    So far the persons that seems to be candidates to be fired are not Pikoli but Mabandla and the President. I predict that when the history of this sorry saga is written, it will go down as yet another nail in the coffin of any reputation that President Mbeki might have had. First there was Aids, then his vilification of the “ultra left”, then his use of the Safety and Security Minister to nix his political opponents (Phosa, Sexwale etc), and now his protection of a man who seems deeply involved with a drug dealer and murder suspect.

    What did we ever do to deserve such a deceitful and corrupt man as President? Or did the President act in this way because he once again thought he knew better than the professionals what the real story was (like he did on HIV/AIDS). No wonder a Jacob Zuma Presidency – based on collective leadership and acknowledgment of fallibility – looks a better option every day.

    Prague spring at the SABC news?

    May 11th, 2008
    by Pierre De Vos.
    8 comments

    Is it a question of “when the cat is away the mice will play?” Given the complete implosion now happening at the SABC, what with CEO Dali Mpofu and group executive of news and current affairs, Snuki Zikalala, both suspended and the SABC board facing a vote of no confidence in the National Assembly it is unclear who is actually in charge at his masters voice.

    I must confess, over the past two years I have not regularly watched what the SABC has quaintly called their news bulletin. One can only watch so many stories of Ministers opening fertiliser plants and Miranda Strydom fawning over our President before one falls asleep.

    But this week I switched to the SABC news bulletin after noticing that it was reporting in a rather detailed and sharp manner on the Ginwala Commission of Enquiry into NPA boss Vusi Pikoli’s fitness to hold office. On Friday night it showed snippets from Pikoli’s legal counsel, Wim Trengove’s, cross examination of Director General in the Department of Justice Menzi Simelane.

    I was taken aback when the usually supine SABC showed the clip of Trengove grilling Simelane about the fact that the State first denied that a letter written by President Thabo Mbeki to Justice Minister Brigitte Mabandla about the suspension of Vusi Pikoli existed. Later it had to admit that there was such a letter.

    Asked Tregove: when the state decided to lie about the existence of this letter, was it the Director General who decided to lie about it or was it the Minister how decided to lie about it. Shoe – bulls eye!

    In the past such a clip suggesting that the state was dishonest in the extreme would not have been shown. Is this a matter of the SABC journalists finally getting the guts to do their job because of the absence of Kommisar Zikalala? Or is this negative reporting on the state’s case against Pikoli perhaps part of an attempt to curry favour with the anti-Mbeki camp in the ANC?

    Whatever the reason, the reports coming out of Auckland Park about this Enquiry have been riveting. How long can it last?

    The reporting also shows how power has slipped away from President Thabo Mbeki since his defeat at Polokwane. When he was at the hight of his influence, no reporter at the SABC would have dared to present such a report that so clearly shows that the Minister and/or the President had lied about the Jackie Selebi matter. The State’s case would have been put in the most positive light and all the viewers would have thought there was all the legal and constitutional reason in the world to suspend Pikoli.

    Now Mbeki is yesterday’s man and even lowly reporters put together stories that can only but embarrass him. How the mighty has fallen. I almost feel sorry for our pipe smoking, gallivanting President. There, I said it.

    Zuma prosecution a conspiracy after all?

    May 4th, 2008
    by Pierre De Vos.
    7 comments

    Supporters of Mr Jacob Zuma who have long held that the Scorpions and the National Prosecuting Authority (NPA) have been used to “frame” their man, received another boost late last week when the Mail & Guardian reported that Justice Minster, Brigitte Mabandla, had “ordered” Vusi Pikoli, now suspended National Director of the NPA, to stop the criminal investigation into Police Chief, Jackie Selebi.

    According to the report in the newspaper Mabandla had written to Pikoli about the Selebi investigation a few days before Pikoli was suspended:

    “Until I’m satisfied that it’s in the public interest, you will stop,” Brigitte Mabandla wrote, according to a source close to former speaker of Parliament Frene Ginwala’s inquiry into Pikoli’s fitness to hold office. Pikoli refused and wrote back to Mabandla that she might be guilty of obstructing justice. He was suspended by Mbeki four days later.

    If this is true, the Minister was clearly abusing her power and trying to Act outside the four corners of the Act by ordering that which the Constitution and the law does not allow her to order. While the Minister must approve any prosecuting policies of the NPA, she has no power to interfere with decisions by the NPA to investigate or prosecute any individual cases.

    This is because section 179(4) of the Constitution states that “national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice” and because this is exactly what the NPA Act does.

    If Minister Mabandla gave such an instruction, it would be highly irregular and illegal and would, in the normal course of events, require her to be fired from the cabinet. Of course, this would never happen. This is because only fools and sycophants would argue that such a purported “instruction” – if it was given – was not first cleared or at least discussed with the President of our country.

    The President can hardly fire the poor woman for merely trying to do what he wanted or instructed her to do. If we had a well functioning democracy with evenly matched political parties and an electorate that voted for political parties based on performance and their respect for the law, such a revelation could well bring down the government.

    In South Africa it will only lead to more suspicion about the ways in which the President – through his Minister of Justice or on his own – had in the past interfered or tried to interfere with decisions of the NPA. If the Minister (and the President) thought that it was in order to give such an illegal instruction, what other instructions were given in the past to protect political allies and friends and persecute enemies?

    If I was a Jacob Zuma supporter I would point to this alleged letter as proof of the attitude of the government towards the NPA and would ask a few pertinent questions. If such a letter was issued in the case of Jackie Selebi, why not in the case of Jacob Zuma? If the government thought it could instruct the NPA like this, did it perhaps instruct the NPA to go after Zuma while not going after others implicated in the arms deal scandal?

    We will have to see what emerges at the Ginwala Enquiry, but it sure looks as if the President and his Minister of Justice had a very strange idea about the meaning of section 179(4) of the Constitution and the relevant sections of the NPA Act that guarantees the independence of the NPA to make decisions on the investigation and prosecution of individual cases.

    It also suggests that the ANC was perhaps barking up the wrong tree when it decided at their Polokwane conference to disband the Scorpions. If they wanted to stop the Scorpions from investigating ANC bigwigs, they might have started by looking at the role the Minister of Justice and the President might have played in decisions by the Scorpions to go after some ANC leaders while leaving others alone.

    But maybe the situation is a bit more complex and maybe the NPA had stopped taking orders from Mbeki and his Minister or had at least started resisting the illegal and unconstitutional interference of the Ngcuka era?

    While Bulelani Ngcuka clearly had a far too close and therefore constitutionally and legally inappropriate relationship with the previous Minister of Justice (what on earth was the Minister doing at a plea bargain meeting between Ngcuka and Tony Yengeni – was he out of his mind?), Vusi Pikoli (who is more of a technocrat than an out-and-out politician) might have started to put some distance between the NPA and the government to comply with the Constitution and the law.

    This recalls the statement made by an apartheid era Minister of Justice who complained once that the problem with judges were that once selected onto the bench they thought they were there on merit and had a bad habit of starting to think for themselves. Something to do with the legal training perhaps.

    This would however not have affected the decision by the NPA to investigate and then to prosecute Mr Zuma and he may well rightly feel hard done by. But this victimhood is somewhat artificial because if he had nothing to be ashamed of, there could not have been any investigation to begin with. Such a pity then, that Mr Zuma has still not explained why he had taken all that money from a convicted fraudster and then did all those favours for him and why he had met with an arms company whom the highest court of the land had confirmed had paid a bribe to him.

    If only he could charm us into forgetting about these findings made by the High Court and the Supreme Court of Appeal in the Schabir Shaik case, we might even begin to like (and, dare I say, trust) our President to be. One thing is for certain, I have long ago stopped trusting our incumbent President as he has shown a remarkable lack of fidelity to the truth.

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