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….
Correct me if I’m wrong: This interpretation suggests that the NDPP has full independence, but the NDPP has to check all his plans and schemes with the ministers before actually deciding to act on them. In effect, let’s suggest that Selebi is implicated, the NDPP would have to tell the minister of justice that Selebi is implicated before actually issuing a warrant of arrest, and not merely notify the minister and the president about the event afterwards?
Seems to me like this chain of events greatly jeopordises the indepencence of the NDPP. What’s the point of having an independendt NDPP if the NDPP has to report to the alleged thugs he is trying to prosecute? What if the office of the president is implicated in something dodgy? To who do you report then?
“Seek first to understand, and then be understood.” – Stephen Covey
You know governing a country is quite a tough job. There is little room for idealism, and many times there is no room, at all, for idealism.
On this very blog Motlanthe was hailed as the new hope. Now he is a scoundrel. I will make a prediction that Obama will also lose his glitter within 6 months of him being president. Such is the nature of the job we give to our presidents. If the decisions they had to make could be made by the book, and always by the book, I am sure a robot could be appointed president.
Presidents DO NOT operate on a basis of information that is in the public domain. They have to bear, on their shoulders, information that could prove dangerous if allowed to reach the public domain. The weight that is for all of us, is left to a few to carry, all because we, a society, could find it hard to carry and we would collapse. As citizens we can live a much more peaceful life if we accept that we will never know it all. And for our safety and in trust, we appoint one amongst us, every five years, who will be the bearer of all our state secrets and apply these secrets in making decision on our behalf, and in the interest of our national security and our well-being.
Many times, people suggested that Mbeki must ‘take the nation to his confidence’ on the Selebi matter. WE confide in president, and not the other way around. WE offload to him/her all hopes and dreams; all fears and insecurity and we give him a statue and resources deserving of a person with such duties. That is his job, period. Why should we do it for him?
Now, of course, our democracy affords us the right to ask questions when we feel cheated and vote out those we feel have done us no good. But it does not guarantee us full transparency. I guess it is this failure of the democratic system that our leaders are now called scoundrels of this blog.
Khosi, similar arguments to yours were made by many in the USA before George Bush invaded Iraq: “Just trust the President” they said, “he must protect us all and knows things we do not know. Our national security requires that we invade Iraq because that is what our President said.” And then, after hundreds of thousands of people had died and no weapons of mass destruction were found, those same people now say, maybe we should not have trusted our President. I would rather err on the side of skepticism and be party by my silence to the deaths of hundreds of thousands of people. If that makes me a bad person in your eyes, I am rather happy about it. It reminds me of the saying by May West in a different context: “When I am good I am good, but when I am bad, I am better…”
See Pikoli’s lawyers response to the Ginwala report here: http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page72308?oid=112177&sn=Marketingweb%20detail
Pierre De Vos // Dec 8, 2008 at 11:01 pm
Hey, I did not say that you were bad but only offered some insight on why you may think our democratically elected leaders a ‘scoundrels’.
Also, the very same Americans live with the safe knowledge that when the go to a petrol station to fill up their gas guzzler SUV’s, the pumps will not be empty.
Some things are ugly, but very necessary.
First, let me repeat it was NOT a “Commission of Inquiry”.
PdV opines:-
“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 completely misconstrues the nature of chapter 3 as well as the constitutional requirements for an independent NPA.”
Not at all. It is PdV who has badly-digested chapter 3.
Section 41(1)h. of the Constitution (situated within chapter 3) provides:-
“All spheres of government and all organs of state within each sphere must . . . co-operate with one another in mutual trust and good faith by
1. fostering friendly relations;
2. assisting and supporting one another;
3. informing one another of, and consulting one another on, matters of common interest . . .”
Not just inter-spherical, then, but intra-spherical too (to coin a term or two).
It is well established that the NPA cannot be an “independent body” in the sense that PdV appears to desiderate. The NPA, as an organ of state, is an arm of the executive over which – as we all know – the Minister is constitutionally mandated to exercise “final responsibility”.
PdV also quotes the Ginwala Report (see para.351) to the effect that the NDPP should have “pro-actively made [the Minister] 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”.
In his opinion this obligation:-
“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.”
“her view”? As to the former limb, it is in the Constitution. PdV’s opinion conveniently ignores ss.33 and 35 of the NPA Act and the comments made in the Ginwala Report at para.65 which, kindly note, “all the parties agreed on”:-
“A meaningful reading of the [NPA] Act necessitates a conclusion that where the NDPP has information that is of importance relating to any significant case, matter or subject pertaining to the work of the prosecuting authority, the NDPP would be obliged in law to bring such case, matter or subject to the attention of the Minister.”
Stating the obvious, she added:- “It is more so pertaining to matters that may impact on national security.”
I sleep better at night because i have faith in myself only. Kgalema is only cleaning after Mbeki’s mess. I doubt that the new anc leadership wants to protect jacky selebi i think they are grateful mbeki did the initial dirty job by suspending Pikoli thus inadvertently removing the only man i think could have taken Zuma down. It is high time that u legal people accept that WE ARE NOT ALL EQUAL IN THE EYES OF THE LAW. How can there be independence when an institution has to report to a politician?
I would like to peruse the report before I venture an opinion on the matter.
I have initially asserted that if investigations are permitted to be undertaken by unvetted persons such will prejudice the State security, thus the constitution breached.
It is only the elements of without fear or favour that operate in the favour of the Director but prejudice operates in the favour of society in general including the State.
If Pikoli wants to challenge the President, the Courts are available.
What happened to Lindelani Maseko? I miss reading contributions from that comrade. He would know where to put these people who call our leaders ‘scoundrels’.
First it was Mbeki, now its uBab’ Motlanthe. Next year it will be uMsholozi. But we will defend all of them, without fear or reservation.
Ishmael & dontgetmestarted, we have our work cut out for us.
White teens in hate camp learn to kill
09 December 2008
Pertunia Ratsatsi
Pretoria police have arrested a man they believe is involved in an underground movement that kidnaps white teenagers and teaches them to hate black people on a farm in Limpopo.
The shocking revelations came to light when a 15-year-old schoolboy told how he was taken to the “hate camp” in Naboomspruit and trained to shoot blacks.
The teenager went missing from his Silverton home last Thursday. His mother reported him missing to the police.
“The boy has told how he was given hate lessons and shown how to use of firearms to kill black people. He needs to be debriefed properly,” a source said.
Gauteng provincial police spokesman Superintendent Thembi Nkwaswu confirmed the arrest of the man but said that was all they would say .
“We have nothing to add,” he said.
She refused to confirm that the camp existed, saying investigations were intense after the arrest and that they hoped to say more once the probe was completed.
The man is thought to be a member of a group of white Afrikaners who operate the “hate camp” with a view to indoctrinating white teenagers with old ultra-right views such as that of the Wit Wolwe.
The boy was kidnapped near his home in Silverton on Thursday.
He was in the street with a friend who regularly goes to the camp. They were both taken away in the arrested man’s car.
The boy was allegedly brain-washed to hate black people and not care about dying. He was also taught how to use guns and plant bombs.
The boy was told that the purpose of the training was to kill blacks as soon as former president Nelson Mandela died
khosi // Dec 9, 2008 at 8:08 am
First it was Mbeki, now its uBab’ Motlanthe. Next year it will be uMsholozi. But we will defend all of them, without fear or reservation.
Ishmael & dontgetmestarted, we have our work cut out for us.
Correct me if I’m wrong, dontgetmestarted, but I wasn’t aware you’d nailed your political colours to the mast – as khosi seems to think you have. I thought you were interested only in correctly interpreting the Constitution and law and debating the issues at hand, whoever the President miight be and whatever their party affiliations might be.
dontgetmestarted: Please read section 33 and 35 of the NPA Act againt. Carefully this time. These sections do NOT say that the NDPP must inform the minister before applying for arrest warrants in serious cases or must inform the minister of ANYTHING, except where she REQUESTS such information. Ginwala assumed that because the Minister has final responsibility for the NPA there is such a duty on the NDPP but what final responsibility means is operationalised in section 33 of the ACT, which fails to place such a duty on the NDPP. Given the constitutional independence of the NPA – confirmed by the CC (I recommend you read the relevant sections form the Certification judgment in this regard) – it is a rather innovative and constitutionally bizarre reading of the Act.
About Chapter 3: Maybe you are familiar with the CC’s view that when one interprets provisions in the constitution this must be done within its textual context. So when interpreting the scope of section 41 one must have regard to the preceding section which states: “(1) In the Republic, government is constituted as national, provincial and local spheres of government which are distinctive, interdependent and interrelated. (2) All spheres of government must observe and adhere to the principles in this Chapter and must conduct their activities within the parameters that the Chapter provides.” Chapter 3 is therefore about intergovernmental relations and your interpretation is not sound. In any case, even if it was, this would not help much because the section relied on heavily by Ginwala is that different spheres must avoiding legal proceedings against one another. But obtaining search warrants or a warrant for arrest against a state official or the Police Commissioner can by no stretch of the imagination be called “legal proceedings” – it is the exercise of the prosecutorial function in terms of the relevant legislation – as pointed out by Pikoli’s lawyers in their response to the report.
Your interpretations seems sloppy and, well, plain wrong.
Pikoli’s wife joined COPE:
http://www.mg.co.za/article/2008-12-09-eminent-leaders-wives-club-sign-up-for-cope
This of course is not “evidence” that Pikoli has no appreciation of the sensitivities of the political environment in which the NPA needs to operate.
sarah palin // Dec 9, 2008 at 9:06 am
One does not need to nail any political colors to any mast, to understand the need defend all our leaders, especially so when the constitution is deliberately misread in order to derive that our leaders are ‘scoundrels’.
dontgetmestarted – >The NPA, as an organ of state, is an arm of the executive over which – as we all know – the Minister is constitutionally mandated to exercise “final responsibility”.<
In other words, if the Minister (or the President, Deputy President, other Minister, Deputy Minister) commits an offence, he/she may not be arrested and charged unless the Minister exercises “final responsibility” and accedes to being arrested and charged. I’m with the good Prof on this one.
Khosi – After having read tthrough the report and Prof de Vos’ interpretation thereof, as well as your response above, it appears that I’m right again. The only reason “national security” is said (by Thabo Mbeki / by the report / by Kgalema Motlanthe / by yourself) to be involved, is because the President said so, and, His Almighty does not have to provide reasons to the ordinary public, or even Commissions of Inquiry or the Courts. What then, is the sense in having s 198 in the Constitution, especially paras (c) and (d) thereof?
“198. (c) National security MUST be pusued in compliance with the law, including international law.”
“198. (d) National security is subject to the authority of Parliament AND the national executive.”
Who will test the constitutionality of a President’s claim that specific action was necessary in the interests of “national security”? And, against what will it be tested? Your argument sounds a little Mugabeish (which equals “rubbish”) to say the least.
Ishmael Malale
According to the cape times you’re on the list of “20 “top” priority candidates [ANCYL] wants to see in the ruling party’s final lists of candidates for the legislatures and Parliament.”
http://www.capetimes.co.za/?fSectionId=&fArticleId=vn20081209055710984C789829
z // Dec 9, 2008 at 10:33 am
That list came from a weekend NEC meeting that Ishmael went to. He told us about that. I also noticed that he was feeling happy all round during last weekend.
Congrats Ishmael. Hope its not too premature.
Mouse,
Please read this – khosi // Dec 8, 2008 at 9:49 pm – and understand it.
I am not saying that ‘national security’ will always be a valid reason. I am saying that as society, we place our trust on the integrity of the president. If we, as society, feel that that trust has been violated, democracy allows us, as society, the opportunity to rectify that betrayal, if we, as society, believe it occurred.
No amount of second guessing Motlanthe’s, or even TM, intentions will change that.
Dear PdV, not for the first time, your response contrives to avoid the points I made.
At 12.53am today (that should be 00.53am, but no matter) I pulled you up on this remark of yours:-
“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.”
We can all read s.41(1)h. of the Constitution, and it is manifestly inter-spherical as well as intra-spherical. What is your answer to that?
I also reminded readers that the NPA is an arm of the executive, and is not “independent” in any conceptual sense, although it has operational independence. What is your answer to that?
***
As for the NPA’s duty to volunteer information to the Minister in high-profile cases, you perhaps failed to read where I quoted Dr. Ginwala as reporting that “all parties [to the enquiry] agreed on” it as the correct interpretation of the legislation.
It appears you take a different view from everyone else at the enquiry on this point, but then again, you are the recognised standard bearer in matters of civil liberties and the world is conspiring to subvert them.
Dear Anonymouse @10.22am,
PdV invented the idea that the executive claims, or tries to exercise, a veto on the arrest of high-profile persons.
The real issue is the conveying of information so as to allow the executive, in such cases, to facilitate the appropriate enabling security environment.
Pikoli, at least, understood the need for this even if you and PdV are incapable of grasping it: see para. 290 of the Ginwala Report.
Actually, poor old deluded Simelane did draft an insane letter (well in tune with his generally psychotic behaviour as DG: Justice) to the NDPP purporting to stay various processes against Selebi and the hapless Mabandla actually signed it. This was a stupendously botched attempt to give effect to the perfectly unexceptionable instructions TM had previously conveyed to the Minister in writing.
Have a nice day!
Dear sarah @9.06am,
khosi is looking for help from whatever quarter he can find it and he has already responded.
I would not like to omit an opportunity, however, to put PdV in the dock once more – the more so since his own careless reading of my posts permits him to conclude that what s.41(1)h. of the Constitution actually says, is in fact my “sloppy interpretations” of it. A child can read the provision. It does not stand in need of “interpretation”.
***
So far, in this and other threads, I have been insistent that statements on various topics by (among others) PdV should not be allowed to pass unchallenged, or taken at their face value – whether they are offered as analysis of the law, as statements of fact, as political punditry, or as prophecy.
PdV is given to a style of pronunciamiento which can lead astray those who are looking for second-hand intellectual support for their prejudices.
He has not been above rhetorically asserting (on no basis whatever) that TM is my hero – in a cheap attempt to discredit my interventions as politically-motivated: see his somewhat manic post in the thread under “Don’t hold Your Breath” // Dec 5, 2008 @6.53 pm.
It may be (for I am not given to hero-worship) that in course of these exercises I may come to view TM as a man more sinned against than sinning; but at present it seems to me only that the case against him is not well made out in several respects, and that this deserves attention.
I think khosi can work with that.
As Vuyo put it (somewhat too expansively, perhaps) in the thread under “Should Pikoli be reinstated” // Dec 8, 2008 @1.38 pm:-
“What has become clear to all those who are fair-minded and have a respect for truth (as it is gleaned from facts) is that many lies were told about Thabo Mbeki.”
khosi // Dec 9, 2008 at 9:59 am
“One does not need to nail any political colors to any mast, to understand the need defend all our leaders, especially so when the constitution is deliberately misread in order to derive that our leaders are ’scoundrels’”
So Khosi, when COPE comes into power and Sam is the president you will defend him as well?
@ khosi
“Seek first to understand, and then be understood.” – Stephen Covey
lol then you say this
Presidents DO NOT operate on a basis of information that is in the public domain. They have to bear, on their shoulders, information that could prove dangerous if allowed to reach the public domain. The weight that is for all of us, is left to a few to carry, all because we, a society, could find it hard to carry and we would collapse. As citizens we can live a much more peaceful life if we accept that we will never know it all. And for our safety and in trust, we appoint one amongst us, every five years, who will be the bearer of all our state secrets and apply these secrets in making decision on our behalf, and in the interest of our national security and our well-being.”
lol khosi can you say BAAAAA? your a sheep with that nonesense you just wrote.
we a society will find it hard to carry and will collapse???
um excuse me what makes you think the public of this country is so weak or stupid to understand information that gives us the truth is that not what democracy is? “Everyone has the right of access to any information held by the state; and any information that is held by another person and that is required for the exercise or protection of any rights” but what would i expect from some one who thinks all judges should be black? how raciest
as for your boyfriend dontgetmestarted how can pikoli be a national security risk when selebi is the national security risk? and please look up 33 and 35 of the NPA Act before you start shouting your mouth off. I come on this site everyday and always see u and your boyfriend Khosi slutting around in this forum
between Khosi and your lover dont getmestarted you two seem to be on one hell bent crusade against PDV, drippling spout of crap and raciest remarks from Khosi. Khosi your a lawyer but what would i expect from some one who thinks all judges should be black? how raciest r u? heres an idea why dont you start your on forum where you can try enlighting the world with your crap.
Khosi – I have read that specific post of yours, esp the last paragraph: “Now, of course, our democracy affords us the right to ask questions when we feel cheated and vote out those we feel have done us no good. But it does not guarantee us full transparency. I guess it is this failure of the democratic system that our leaders are now called scoundrels of this blog.”
A few things: Firstly, if a democracy does not guarantee transparency, the Constitution that governs that democracy is reduced to a useless paper tiger. (We must remember, under apartheid, transparency in the field of national security was an unknown thing.) Secondly, if that transparency is lacking, and society is allowed only to demonstrate distrust every 5 years at the national elections, how can the well-being of society be at all guaranteed. A lot can happen in 5 yaers. Third, s 198(c) of the Constitution specifically affords Parliament co-responsibility and authority over “national security”, together with the president. Why involve Parliament at all if it is the sole authority of the President? Remember that states of emergency may only be declared in terms of an Act of Parliament, not a presidential decree as was the case under apartheid (s 37). Lastly, s 198(a) reads: “National security MUST reflect the reslove of South Africans, as individuals AND as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life.” In other words, not only society as a whole, but also individuals, have an interest in matters the President considers national security, and the only way inviduals can be guaranteed their interests and rights is through transparency and the Constitution and the law, and there the courts have the final say.
Anonymouse // Dec 9, 2008 at 11:50 am
……………………………………………………………….
You need to qualify your post because Khosi refers to lack of guarantee of “full transparency”, as you have correctly quoted him, as opposed to a lack of guarantee of ‘transparency’.
I can understand his contention though I do not necessarily concur therewith especially since we are dealing here with National Security and therefore sensitive information.
This information may be sensitive enough for even the Constitutional Court to order that the matter be heard in camera such as was the case in Independent Newspapers (Pty) Ltd v Minister for Intelligence Services (Freedom of Expression Institute as Amicus Curiae) In re: Masetlha v President of the Republic of South Africa and Another (Independent (CCT38/07) [2008] ZACC 6 (22 May 2008).
@dontgetmestarted
Section 41(1)(h) of the Constitution yeh funny using that example when on the other side of the coin The Minister was the government’s principal witness on a number of crucial disputes. She chose not to give evidence.
can you explain that?
and also explain in the report
The enquiry completely vindicated Mr Pikoli on this score. It not only concluded that the government had failed to impugn Mr Pikoli’s fitness for office but also specifically vindicated his integrity and conscientiousness. It repeatedly held that Mr Pikoli,
- “impressed me as a person of unimpeachable integrity”;[2]
- “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”.
so if he has integrity and credibility explain to me how he is a national threat. when the very reason he was suspended for the first place was becuase of his break down in the relationship with.
all you guys are doing is throwing around this act and that act and missing the main plot where the report stated that pikoli has integrity and credibility.
There is no grounds to fire him there was no grounds to even suspend him.
@Mouse,
Please give me something to respond to.
chris mcdaniel // Dec 9, 2008 at 12:16 pm
“There is no grounds to fire him there was no grounds to even suspend him.”
……………………………………………………………………………………..
I sincerely wish it were as simple as you think or suggest it is. However, when National Security is alleged to have been compromised then all of us need to open our eyes.
I am still not supporting the view that National Security was compromised but I am merely wanting those who claim that to substantiate their bold ascertaions or at least if the manner in which it was compromised would lead to further compromise or is privileged then I would like a competent court of law to declare that the dismissal of Pikoli is indeed justified as he was compromising National Security as it is claimed even if such a judgment would be made after proceedings carried out in camera!
Dear Chris,
Ignoring your puerile jibes, I observe that the “main plot” you have so kindly identified for us relates to PdV’s previous article on Pikoli and not to this tread which is discussing national security aspects.
***
Dear PdV,
In light of the fact that you are Professor of Constitutional Law at the University of the Western Cape, I await your apology for abusing my “interpretations” of the relevant legislation (including s. 41(1)h. of the Constitution) as “sloppy”: // Dec 9, 2008 @9.45 am.
It is clear that it is you who has been sloppy in failing to recognise adequately or at all (1) that the NPA is an organ of state within the executive branch, and (2) that s.41(1)h. in terms (and not according to any “interpretation”) applies not only to relations between the 3 spheres of government (national, provincial and local) but also to relations between “all organs of state within each sphere”.
Once we have restored some order on that point, we can turn to discuss your bogus pro-active point (unless, that is, you care to withdraw now, to save wasted time and effort later).
chris mcdaniel // Dec 9, 2008 at 12:16 pm
Funny how you, Pikoli and the liberal gang (including PdV) find it fitting to unequivocally cite Ginwala’s findings regarding Pikoli’s unimpeachable integrity and competence (with which I fully agree) and yet find it fitting to cast aspersions regarding her equally unequivocal exoneration of Mbeki and Mabandla. It smacks of liberal hypocrisy and a crass disrespect for truth. It seems the only findings that merit applause in this Republic are those that are condemnatory of Mbeki or any other African administrator (and this smacks of a sublime yet equally ignoble type of racism).
Vuyo // Dec 9, 2008 at 12:45 pm
…………………………………………………
Whats your take on the refusal of Bridgette Mabandla to give oral evidence to the “enquiry”?
Sne – I agree, “national security” can mean that we are dealing with sensitive information, but it does not mean exactly that. The only hint Thabo Mbeki (and Khosi, and the Ginwalla Commission) ever gave as to how a threat to “national security” is concerned in this specific case, is that it might’ve posed a threat to “national security” if the National Commissioner of Police is arrested and charged on such serious charges. I fail to see how national security could have been affected adversely by that and why Thabo Mbeki had required of Pikoli to lay-off until he has sorted out the problems of national security. That is the only way in which the Ginwalla Commission actually found Pikoli’s conduct to have been lacking. In the words of Prof De Vos above: >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”.<
The problem with Khosi’s argument, and also Ginwalla’s and Kgalema Motlanthe’s arguments, is that, when the President says something is a threat to “national security”, even no serious threat seems to be looming, except that the National Commissioner of Police might be arrested and charged for being a crook, then society must accept that it is a threat to national security. I don’t buy that, and neither does the Constitution. I agree, an argument that something is a threat to national security where there does not appear to be a valid indication that it is in fact te case, to cry “national security” is in fact the last resort of scoundrells. That was the case with the apartheid government, and that is the case now. And, if people in power offers feeble excuses like “national security”‘ to justify their actions, they must expect (and they deserve) to be called scoundrells.
Khosi – I hope that is incentive enough?
So our president has some divine power that makes him strong enough to take the weight of national security on his Herculean shoulders, where we mere mortals would collapse. Cult of the Great Leader here we are.
I predict some fun and games when this actually gets before parliament and the Motlanthe decision is analysed more carefully. Then again the ANC majority will probably tow the line as usual. As far as I am concerned, the rationale for the decision is fatally flawed and is nothing more than a smokescreen, and a pretty thin one at that, to hide a politically motivated decision.
Having regard to Chris’ crypto-sexual obsessions, “tread” is a Freudian slip for “thread” of course.
@ dontgetmestarted
Ignoring your puerile jibes, I observe that the “main plot” you have so kindly identified for us relates to PdV’s previous article on Pikoli and not to this tread which is discussing national security aspects.
how convenient – thats the whole point Pikoli is found to have been
“impressed me as a man of unquestionable integrity, with passion to execute his constitutional responsibilities without fear, favour or prejudice”
does this sound like a person who is a national threat or a threat to national security?? no this sounds like someone one who is actually doing there job.
What about selebi? National threat to security?
@Sne
I sincerely wish it were as simple
It actually is we can agree the report found him to be competant of his post yes? the problem is your dealing with corruption within the ANC and from Mbeki
@dontgetmestarted
you have so kindly identified for us relates to PdV’s previous article
No it relates to the actually report which you so blindly seem to be missing on key points such as what threat is Pikoli to national security? your hiding about and side stepping with acts on which branch the NPA belongs to and missing the main point which is how is pikoli a national security threat and Selebi isnt?
Pikoli has been vindicated by the report you cant argue that. the problem is he is being unjustly fired for a trumped up charge of beeing a national security threat.
@Vuyo
lol no it just shows how the minister lacked abit of brain cells since Ginwala’s was the one who wrote in the report he was fund to be of a man of creadibility.
“those that are condemnatory of Mbeki or any other African administrator (and this smacks of a sublime yet equally ignoble type of racism”
lol what?? how do you manage to bring racism into this?
Vuyo this is not a conspiracy plot of me as a white man trying to bring down a black leader beucase im white, i really dont care what color or genda infact we can have a transvistite running our country for all I care but what i do care about is corruption from our government its not on is it?
is this really fair vuyo firing someone who is found to be creadiable and just suspending someone like selebi who is corrupt? is that justice and Vuyo and for your information im actually a yank I come from Michigan
@dontgetmestarted, Sne, Vuyo
In the extreme I think Mouse, Pierre de Vos, Chris are just people extremely worried that a bunch of natives know more than they will ever know.
Mouse even ‘quotes’ section 198(a) of the constitution to try and salvage some traction:
“National security MUST reflect the reslove of South Africans, as individuals AND as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life.”
Now because the word ‘reslove’ should be resolve and the words ‘must’ and ‘and’ are in capital letters, I will assume that this was not lifted directly(copy and paste) from the constitution. But I will engage it in the assumption that it correctly captures what is in the constitution.
Two points:-
1) nowhere does this say that the information pertaining to national security should be readily available to society.
2.) if we as society are entitled to know all that our leaders know, why is it that our Intelligence community is not required, by the constitution, to publish a detailed report on its activities and knowledge gathered?
Transparency is, yes, ideal and good. But transparancy to the level that matters of our security are compromised, it just stupid and dangerous. To trust people, with information that delivers our national security, does not turn us into sheep or boyfriends, lovers or even homosexuals.
The main problem here is that, ‘these natives cannot be trusted’. Period.
Dear Anonymouse and spoiler,
The issue, as I have explained already (@11.05am, for example) is the necessity for an enabling security environment to be in place in all high-profile cases.
Pikoli’s defects in this regard seem to have been congenital.
***
Let us condescend to traverse the ground as Sne, for one, now seems willing to do.
In August 2005, the DSO, pursuing its Zuma investigations, obtained search and seize warrants for execution at, among other places, Tuynhuys and the Union Buildings.
Because the resources of the NPA are not unlimited, the NDPP authorised the retainer of external assistance including in particular employees of a firm specialising in information retrieval from computers.
The Ginwala Report includes this [para.202]:-
“The fact that Adv Pikoli did not inform the Minister of his intention to obtain the warrants of search and seizure of documents that were in the Union Buildings and Tuynhuys is a dereliction of duty on his part.”
“It is a further example of his failure to consider it as his obligation to proactively inform the Minister of a high profile matter in which the NPA is involved. In this case he failed to inform the Minister in advance that he intended to obtain warrants of search and seizure especially as the searches were going to be conducted in a national key-point.”
And this [para.223]:-
“The responsibilities that rest with someone like the NDPP as the head of an organ of state is to avoid legal processes in accessing documents that could otherwise be obtained through co-operation with other state institutions. The Constitution places a duty on all organs of state to co-operate with one another and to assist one another and more importantly to avoid inter-governmental litigation.”
And this [para.225]:-
“Adv Pikoli did not furnish any evidence suggesting that he was apprehensive that access to these documents at the Union Buildings and Tuynhuys would have been frustrated had he asked for such access.”
And, most crucially, this [para.339]:-
“ . . Adv Pikoli failed to ensure that all necessary security measures were taken to prevent any potential breach of security at the Union Buildings and Tuynhuys. Adv Pikoli and the DSO did not obtain the necessary security clearances for the security company that assisted with the search and seizure operation at the Union Buildings.”
It is not a question of whether national security was in fact compromised, but whether Pikoli had any understanding of what was involved here.
@dontgetmestarted
Having regard to Chris’ crypto-sexual obsessions, “tread” is a Freudian slip for “thread” of course.
lol shame its ok ur boyfriend khosi will be here soon to rescue you
spoiler // Dec 9, 2008 at 12:58 pm
Yes, All presidents in the world have this power.
@khosi
@dontgetmestarted, Sne, Vuyo
In the extreme I think Mouse, Pierre de Vos, Chris are just people extremely worried that a bunch of natives know more than they will ever know.
shame hey is that the best you can do is lower urself to racism?? is that the only comeback comment you can make? lack of education i see.
I got no problem with black people or any race lol i voted for obama in our elections so please grow up on ur racial propaganda.
Infact im defending pikoli because he actually was damn good so im sorry how u come to conclusions that i have a problem with “native people”
From the Ginwala Report, para. 224 we learn that Pikoli thought it was only a matter of “courtesy” that he should inform the Minister and the President that he had obtained search and seize warrants executable at Tuynhuys and the Union Buildings in respect of information (preserved in various formats, including on computers) which he had not previously asked for, and access to which he had no reason to suspect would be denied.
He then used independent contractors without ensuring they had (as they did not have) security clearance from the National Intelligence Agency regarding contact with classified information.
@dontgetmestarted
“It is not a question of whether national security was in fact compromised, but whether Pikoli had any understanding of what was involved here.”
oh but it is since thats the reason why he is being fired and how r u to judge whether he had the understanding of what was involved being a director i think it would be part of his mandate to understand that dont you think?
All that is currently happening is a very carefully constructed plan by the ANC (Zuma camp) They needed to get Pikoli fired because that will be the only way for them to ensure that one of their are made NDPP thus ensuring that the Zuma “prosecution” are being influenced from the inside or even set aside. Even the President found it difficult to convey sincerely his reasons for firing Pikoli.
The Zuma camp knew that if Pikoli are reinstated Zuma will have to answer in a court of law. The first thing that will happen now is that a person favorable to Zuma is appointed and then it will be either announced the case will be dropped or the prosecutors fired. That will ensure the Zuma camp get their result. That for me is the only credible reason why Pikoli was fired. This has nothing to do with National Security or even his fitness for office. Any comment???????
@dontgetmestarted
From the Ginwala Report, para. 224 we learn that Pikoli thought it was only a matter of “courtesy” that he should inform the Minister and the President
you are really fishing
explain this one to me
On Jackie Selebi, you see, the NPA has to get permission from the rather useless Minister of Justice, Brigitte Mabandla, whether to prosecute or not. On Jacob Zuma, the same NPA said there is no interference in its processes and it (the NPA) and only it made the decision to prosecute.
You will remember that on December 16 the NPA said it had made a decision on whether or not Selebi “had a case to answer”.
dontgetmestarted // Dec 9, 2008 at 1:10 pm
…………………………………………………………………….
Thank you very much…
Now I really need to get a copy of the Ginwala Report so that I can read it and save it and refer to it if need be. You are now at an advantage because you have access to that Report. May you please provide a link here where I can get the Report and be able to save it?
Based on what you have quoted from that Report, it seems like Pikoli was ill-advised but that can change after reading the entire Report plus Pikoli’s submissions to the President a copy of which I have…
@dontgetmestarted
Here u go let me show you how Independent the NPA actually is
http://www.info.gov.za/speeches/2008/08010208451001.htm
I love this statement
“The National Prosecuting Authority (NPA) has reached the decision to prosecute Mr Jacob Zuma, Thint Holdings (Southern Africa) (Pty) Ltd and Thint (Pty) Ltd, after careful consideration of the facts and evidence.”
Dontget me started how is it possiable that the NPA must get permission first for Selebi and now for Zuma they dont seem to need permission??
Can you explain that??
to whom it may concern
NOTICE OF INTENT
This is a blog, not a popularity contest. I am not soliciting anyone’s vote.
I select the aspects of PdV’s topics on which I choose to intervene, and if people direct me to where I have erred, or otherwise engage me on the arguments (not having previously insulted me – unless that fault is subsequently purged by a frank apology), or civilly ask me for clarification, or if they draw false conclusions from what I have said, or put words in my mouth, or (being people who I have reason to think are amenable to argument in some manner) accuse me of incompetence or lack of comprehension, I will respond;
but I consider myself under no obligation to take notice of every fatuous, off-topic, illogical, impertinent, or scabrous drivel that finds its way on to this blog whether or not it is preceded by, or contains within its bowels, my nick.
Posts founded or leaning on, or suspended from or sustained by, lols, dudes, and similar verbal ticks, pretended aids to comprehension (not excluding multiple question marks), or other demotic devices serving solely to ingratiate the writer with like-minded readers, will not be entertained by me in any fashion.
I cannot undertake to assist people just because they have half a dozen ill-conceived ideas sputtering inside their brains, all competing for oxygen inside those very insufficient organs.
If you care about the issues ventilated here, study them before you spout.
Have a nice day!
but honestly how is it possiable that permission is required for selebi not zuma?
dontgetmestarted // Dec 9, 2008 at 2:06 pm
I do not think that Chris understood what you said. Do you think you have the time to draw him a picture?
Dear Sne @1.40pm,
You warned me some time past not to try to fool people by my posts.
Much as I would like to assist you further, I am first awaiting your withdrawal of that imputation of deceit against me.
So long as you permit a statement of that kind to stand against me, it would be illogical for you to request my aid so long as you mistakenly believe – so it would appear – that I am untrustworthy, or that unparliamentary language is not inimical to honest debate.
You must, therefore, post an unconditional withdrawal on the relevant thread if we are to inter-act further.
I am, however, heartened by the evidences you frequently give of taking an interest in the primary sources.
If you remain obdurate, I am sure other bloggers whom you have not insulted will be willing to assist.
dontgetmestarted // Dec 9, 2008 at 2:06 pm
……………………………………………………………………
Sorry, your point was? How is this relevant to what is being discussed hereunder?
This is a blog Dontgetmestarted and you should stop soliciting recognition of some sort. You are not more important than anyone here on this blog and neither are your views. Prof. Pierre himself tolerates bloggers here to a large extent in the interests of the freedom of expression. Stop being the hyper-sensitive freak. If you do not like how bloggers write here or what they write then you are welcome to leave.
Geez, Wessel aka Mhambi was unfortunately right about you. You are such a ‘special-attention-seeker’!
dontgetmestarted // Dec 9, 2008 at 2:16 pm
“You must, therefore, post an unconditional withdrawal on the relevant thread if we are to inter-act further.”
………………………………………………………………………………………
I quote President Robert Mugabe; “You can go hang.”
No Khosi i understood dontgetmestarted he seems to get very easly perturbed. I understand that wasnt directed to me
but i want him to address my question and you khosi how is it possiable that all of a sudden the NPA can act independently with Zuma and not selebi?
Dontgetmestarted lol i agree with Sne
There are many points raised by bloggers, especially that the dismissal of Pikoli has got to do with protecting Zuma. i find that a perverse point. Mr. Mphse is acting with full powers. The dismissal of Pikoli has something to do with undermining of his responsibilities.
If you undertake investigations with unvetted security personnel you are trenching upon systems put in place to safeguard the affairs of the State and Society. This conduct warrants serious action from the Office of the President.
The viewpoint that the dismissal is an effort to secure inaction against Zuma is unsubstantiated as not to warrant attention. Give tangible facts before discussion can ensue!
khosi // Dec 9, 2008 @2.16 pm
PdV and Anonymouse have an equivalent blind-spot, so I shall pretend I am responding to their concerns.
Apart from single instance of the multi-delusional Adv. Simelane’s draft which Mabandla was foolish enough to sign and dispatch on 18 September 2007 (thereby failing to carry out in accordance with their terms the express instructions she had received from the President by letter the previous day), there is no suggestion anywhere in the public domain that the NPA ever sought, or was required to obtain, consent before investigating or charging the National Police Commissioner or any other person or persons of whatever degree, high or low.
Ishmael Malale // Dec 9, 2008 at 2:33 pm
People like to make up stories that do no exist. It troubles me to consider that they are actually criticizing President Motlanthe for acting on behalf of our national security. He did this knowing fully well that his decision will present a political headache for him.
@ Ishmael Malale
Thank you, but my view is this i dont think Zuma is the problem since the NPA is on a mission to nail Zuma to the wall with or without pikoli, my problem is that Pikoli has been fired because to protect Selebi and Mbeki
But the government’s complaints against Pikoli were numerous. From their argument and cross-examination in the hearing, some of government’s complaints were:
• Pikoli disregarded former justice minister Brigitte Mabandla on the listing of the Scorpions as a “public entity” in terms of the Public Finance Management Act;
• Pikoli had entered into inappropriate plea and sentence agreements with Nassif and Agliotti;
• Pikoli allowed the Scorpions to gather intelligence which, by law, they were not allowed to do. This was, in particular, with regard to the infamous Browse Mole Report ;
• Pikoli authorised people with inadequate security clearances to conduct search and seizure operations at the Union Buildings and Tuynhuys;
• Pikoli informed Mabandla and Mbeki that he intended to prosecute Selebi, but not of his intention to obtain an arrest warrant against him; and
• Pikoli disregarded the president’s pleas for more time to prepare for the impending Selebi prosecution.
Many of these complaints were demolished by Pikoli’s legal team and others not even pursued by the government. But a few seemed to elicit a sympathetic response from Ginwala and her team.
These were the Browse Mole Report complaint, the security clearances issue, Pikoli’s failure to inform Mbeki and Mabandla about the possible arrest of Selebi, and that he refused Mbeki more than two weeks’ grace to “create an enabling environment” for the prosecution of Selebi.
dontgetmestarted – >“ . . Adv Pikoli failed to ensure that all necessary security measures were taken to prevent any potential breach of security at the Union Buildings and Tuynhuys. Adv Pikoli and the DSO did not obtain the necessary security clearances for the security company that assisted with the search and seizure operation at the Union Buildings.”
It is not a question of whether national security was in fact compromised, but whether Pikoli had any understanding of what was involved here.Apart from single instance of the multi-delusional Adv. Simelane’s draft which Mabandla was foolish enough to sign and dispatch on 18 September 2007 (thereby failing to carry out in accordance with their terms the express instructions she had received from the President by letter the previous day), there is no suggestion anywhere in the public domain that the NPA ever sought, or was required to obtain, consent before investigating or charging the National Police Commissioner or any other person or persons of whatever degree, high or low.<
You call Simelane multi-delusional? That is an understatement, but I’d call Mbandla and Mbeki by the same name for the way in which they handled the whole issue. It simply cannot be said that the whole thing had nothing to do with the Selebi matter and Mmbandla’s and mbeki’s dissatisfaction with the way in which Pikoli handled that matter. Why was Mpshe immediately mandated to “review” Pikoli’s decision after Pikoli was suspended? Why was Selebi, despite indications from Mpshe (and the experts he consulted) never suspended, but only put on long leave with full pay (and his contract extended while he has already appeared before a court). Anyone can see that everything is not in order, and then the President (previous and incumbent) comes and says, “well, you won’t understand, but it is all a matter of ‘national security’, therefore I have no choice but to suspend / fire the top prosecuting boss in the land.
I see COSATU (politicsweb website) also do not buy the reasons given by the President for dismissing Pikoli. They say he did the right thing but for different and “weak” reasons!!
@ PDV
Some food for thought this should be interesting now.
The Ginwala Report would also seem to clear the former President of any responsibility for such illegal or improper conduct, and diverts attention from this central issue with vague and unsubstantiated allegations of Pikoli “lacking sensitivity to matters of national security”.
Whats interesting now is he may have also indirectly have helped the NPA to win its appeal against Judge Nicholson’s
would Ginwala report not exonerates the former government and the NPA of the judge’s charges?
Perhaps Lindelani’s employer woke up to the fact that he was using company property and company time inappropriately.
@ Vuyo: Is Pikoli not an “African administrator”?
@Khosi: Why must we defend our leaders? And blindly nogal? Constructive criticism helps us all to grow as individuals. Well, most of us anyway.
Why is it that the biggest racists and the most insulting amongst the bloggers keep on accusing everyone else of being racist & insulting? One can debate an issue without resorting to such counterproductive statements. That is of course if your argument is one of substance to begin with.
As for all the criticism leveled against Pierre: Nowhere does it state that this blog will at all times be completely objective. That is an impossibility. We all come with our own level of personal bias and one piece of legislation can be interpreted in several ways. If that was not the case there would be no need for the existence of lawyers. We are all intelligent enough to use his posts as a starting point and draw our own conclusions.
I would love to know why the minister elected not to testify. Perhaps she saw Wim in action and decided that she would not survive the cross examination.
I just have to ask myself why, if the government had so many complaints against Pikoli (as so nicely listed by Chris Mcdaniel), wait until a few days before the prosecution of Selebi is to commence before suspending Pikoli? Only two of the complaints prima facie relate to Selebi. If the government was that unhappy about his performance he should have been suspended ages ago. Particularly if national security required it. Coincidence? It seems unlikely.
Dear Ishmael Malale and Khosi
Please read in “Die Burger”
http://www.dieburger.com/Stories/News/19.0.1148401178.aspx
Mr. Ngoako Ramathlodi have been earmarked to replace Pikoli. This may be argued as speculation only by you but this is the way the ANC have worked in the past. Do one thing to accomplish another. At this stage the ANC is working full steam to get a solution for the Zuma issue. If Ngoako have not been “selected” then someone else but the firing of Pikoli have provided the Zuma camp with the most ideal opportunity ever to a solution.
You may argue “provide more facts” but as you would know it will be provided with time to come. The same scenario played itself out with the Travel Gate scandal. Certain people are being protected at all costs. For the ANC who believe they are above the law or that the constitution does not apply to them why should the report matter as long as they get their way. Just in case you wonder your leader Mr. Zuma said the ANC is above the constitution.
dontgetmestarted: Ginwala found that there was an instruction not to arrest Selebi. She found that the President “requested” Pikoli not to arrest Selebi as planned and when he refused, suspended him. She found that Pikoli should have told the Minister and the President about this before he got the arrest warrant and that he was wrong to present the arrest as a fait accompli to the President. These are all in the public domain. There is no direct “smoking gun” evidence that the President or Minister tried to obstruct the INVESTIGATION (although the President was rather lackadaisical in assisting Pikoli with getting the information he needed from the SAPS). Thus: clear evidence of obstruction of the arrest; circumstantial evidence about obstruction of the investigation.
On your previous point: You failed to grasp my perhaps too subtle explanation on the finer points of Constitutional interpretation or if you had, you chose to ignore it. I said it was “not at all clear” that chapter 3 applied to the NPA (note I did not assert it as fact). I referred you to CC judgments on the interpretation of the Constitution where it said the provisions of the Constitution had to be read contextually and that the textual context of a provision was important. Here the textual context of section 41 is chapter 3 regarding “Co-operative government”. Section 41 is preceded by section 40 and according to the CC must be read in the context of section 40. Section 40 states that “All spheres of government must observe and adhere to the principles in this Chapter and must conduct their activities within the parameters that the Chapter provides”. Note, it does NOT say all organs of state must observe and adhere to the principles set out in section 41. Section 41 may therefore plausibly be interpreted as requiring all organs of state and spheres of government in different spheres to co-operate as envisaged and may not apply to independent constitutional institutions who do not strictly speaking form part of any of the three spheres of government. You may well differ from this interpretation but my interpretation is legally plausible (I believe more so than yours, given the requirements of for the independence of the NPA). You are welcome to advance arguments why my interpretation is wrong or why my reading of CC jurisprudence on Constitutional interpretation is wrong. It is really not in the spirit of this Blog to boldly assert your view as correct without reasoned argument. Saying even a child can read the section like you do, constitute an attempt at bullying and is not a reasoned argument at all and seems rather to detract from, instead of enhance, your argument – as a child would not have read the CC jurisprudence on how to interpret the Constitution (either?) and may well make what I suspect to be the same mistake as you are making.
I note you have not commented on my interpretation of section 31, which I take as an admission that you were wrong when you pointed to this section as proof that Pikoli had a legal duty to inform the Minister of cases even where she did not ask for information on them. If, however, you can point me to the relevant wording in section 31 which places this duty on the NDPP I would be much obliged. Maybe the Act was secretly amended?
Heidi // Dec 9, 2008 at 3:41 pm
The is nothing constructive in calling somebody a ‘scoundrel’. Its derogatory, undue and smacks of racial innuendos. Remember the word scoundrel is almost always used with the word ‘dirty’.
Do not try and tell me that I blind when I am protesting against what is clearly a underhanded.
Argue you point and we will dislodge it, if its baseless or based on injustices of people who think that they have a perpetual rule on native, just because some of us do your washing at home.
Heidi // Dec 9, 2008 at 3:41 pm
“Why is it that the… most insulting amongst the bloggers keep on accusing everyone else of… insulting?”
…
“I would love to know why the minister elected not to testify.”
…………………………………………………………………………………
I am keenly awaiting any response that might come your way in order to know these two in particular!
infact these were his very words 17 November 1996,Durban, KwaZulu-Natal
“I said then that the ANC is more important than even the Constitution of the country”.
wow thats our new president who is above law who is jesus christ
@khosi
Do not try and tell me that I blind when I am protesting against what is clearly a underhanded.
Argue you point and we will dislodge it, if its baseless or based on injustices of people who think that they have a perpetual rule on native, just because some of us do your washing at home.
khosi im sorry my man but you have got some issues you really do. What is up with his chip on your shoulder?
Khosi seriously you need to see someone. You seem to have a good job a good life there is no need for such hate from you?? you have issues honestly.
whats the problem with the word scoundrel does scoundrel mean black?
Sne // Dec 9, 2008 at 4:07 pm
Heidi // Dec 9, 2008 at 3:41 pm
Who is insulting who here. Because, I will submit that the first insult was issued in the title of this article.
Now who is insulting who?
Sne // Dec 9, 2008 at 4:07 pm & Heidi // Dec 9, 2008 at 3:41 pm
Who is insulting who here. Because, I will submit that the first insult was issued in the title of this article.
Now who is insulting who?
Your comment is awaiting moderation.
Kinda stepping on my point there, Khosi.
Scoundrel means dishonest or unprincipled person. I seem to recall you calling Pierre dishonest quite often. So are we to conclude that your attacks smack of racial innuendo?
The word does not smack of racial innuendo at all. Perhaps it does to you because you choose to view the world through your racially tinted glasses.
Sne & Heidi
Who is insulting who here. Because, I will submit that the first insult was issued in the title of this article.
Now who is insulting who?
Heidi // Dec 9, 2008 at 4:17 pm
Dishonest is not a correct description of scoundrel. Do not invent a dictionary.
Let me help you there, bokkie.
Scoun”drel\, n. to scunner, scouner, to loathe, to disgust. A mean, worthless fellow; a rascal; a villain; a man without honor or virtue.
Scoun”drel\, a. Low; base; mean; unprincipled.
But the word scoundrel is also synonymous with the word ‘blackguard’. And that is where the racial innuendos of the word come from.
Blackguard means: – ‘a group of menial workers in the kitchen of a large household.’ or at best
‘Perhaps once an actual military or guard unit; more likely orig. a mock-military ref. to scullions and kitchen-knaves of noble households, of black-liveried personal guards, and of shoeblacks. By 1736, sense had emerged of “one of the criminal class.”‘
And that is the danger of Pierre’s dishonest ways
@khosi
so because the title mentions scoundrel you think its an insult to you? you seem to enjoy making something out of nothing and attach rase to it.
yip i looked in the dictionary your right Khosi scoundrel means white kkk racism. damn im sorry khosi is there anything we can do to make it up to you?
sis on Professor how could you use such a racist word like scoundrel when you clearly knew it means white surpremecy damn it im sorry khosi us whities will never get will we?
ahhhh there we go khosi means Blackguard has the word black in it yip its racist
Blackguard:
http://worldwidewords.org/weirdwords/ww-bla3.htm
“The earliest recorded use, by a few years, was in 1535. Then it referred to low menials in a royal or noble household. They were the ones who looked after the pots and pans and other kitchen utensils: the scullions or kitchen-knaves. Nobody knows for sure why they were said to be black — perhaps the colour of the pots literally or figuratively rubbed off on them. “
I wish I could claim that I invented the Oxford, but alas, I did not.
@Chris LMAO. Indeed.
@ Sne We wait in vain.
Khosi – ‘scoundrel’ (German = ‘der Schurke’) does not only mean a dishonest person, but a very dishonest one, so that he can be called a ‘skurk’ in plain Afrikaans. When a leader resorts to that nebulous concept “national security” to suspend or fire a person in high office (only because the real ‘political’ reasons for such an action would sink himself), knowing that national security is not in issue at all (I still dare you to prove that national security is in issue here), he/she deserves being called a scoundrel (‘skurk’).
And, I have also checked up on the meaning of the word. Dit you know that one of the synonyms of ‘scoundrel’ is ‘rat’?
Now, if you can call me a scoundrel just because I often disagree with you, then surely people in high office whose actions simply do not make sense and often appear to be nothing but blatant dishonesty (remember the blog on President Pinochio?) may be called scoundrels – that is if they resort to a nebulous (undefined) thing such as “national security” of which he is the only authour and interpreter in the circumstances under which he chooses to use it, as the last resort to explain something that is prima facie inexplicable. Note that the phrase used above, “national security IS OFTEN SAID to be the last resort of scoundrels”, means not that the person IS a scoundrel, but rather that such a person should know that IT IS OFTEN SAID to be the last resort of scoundrels, just so that he can know, he is not trusted and, if he wants to be trusted, he should say what he means. If he does not, then suspicions are confirmed, he is a scoundrel, nothing less.
In my haste I misquoted the begrudged phrase, it should read >that “national security” is sometimes [not as bad as often] called the last refuge [a little worse than resort] of scoundrels<
Rat or Scoundrel
I knew that. LMAO. You have no idea how happy I was to find that out.
But what you are explaining, as accurate as is, does not take away from the fact that ‘scoundrel’ = ‘blackguard’, which is in turn describable as : – ‘a group of menial workers in the kitchen of a large household’. Which makes Pierre use of the word to have racial innuendos, especially given the history of our country.
If you as a white person called me a ‘non-believer’, I would take serious exception from that.
Pierre was, at best, careless. I, however, am of the view that he was downright racially insulting, the president, by the use of that word. And that we cannot tolerate.
*sigh*
exactly my feeling, Heidi.
Are we no longer to be allowed to mention black humour,blackboard, blackmail, black eye, blackbird, black mamba..?
BlackBerry, blacklist, black sea, blacksmith, blackhead…. : )
Rather infantile, but certain bl(ack)oggers bring it out in me.
Oh dear Khosi, it seems my (what I thought rather clever) world play went right over your head. My heading was obviously referring to the famous saying coined by the father of the English Dictionary, Samuel Johnson, who said in 1775 that: “Patriotism is the last refuge of scoundrels”. By which he meant to indict FALSE patriotism, or people who used patriotism to obscure their real motives. This phrase is often used against politicians in the English speaking world and is about as far removed from any racial connotations as an insult could get. See for example http://www.independent.co.uk/news/world/americas/patriotism-ndash-last-refuge-of-scoundrels-and-undoing-of-democratic-candidates-860886.html and http://www.partialobserver.com/article.cfm?id=213. Pity you did not know this. I assume if you did, you would have thought twice before impugning my integrity. Either that or you are rustling up a false controversy to try and detract from the real arguments about the merits of the Ginwala Report and the decision to fire Pikoli. Maybe we can return to the real and honest discussion? What do you say? You can start by attempting an answer to my questions I posed to Vuyo in the post above. Kisses. Pierre
Pierre De Vos // Dec 9, 2008 at 6:49 pm
Part 1 of 2
Firstly, you do not need me to impugn you integrity. Your shoddy political analysis does that in spectacular fashion.
Secondly, the problem is that you want to have us believe that you are comparable to Samuel Johnson. You are not. You have used a perfectly noble quote in an imperfectly wrong context. Period.
1700′s England did not have the racial sensitivities that 2008 South Africa has. It may very well be that you were not aware of the possible racial insensitivity of the word ‘scoundrel’(I have explained this), but then that will point to a shallow understanding, on your part, on the words that you choose to throw around. Its either that or you were racially insulting the president. If you dispute this then prove that:- ‘scoundrel’ is not synonymous with ‘blackguard’ which in turn means ‘a group of menial workers in the kitchen of a large household’.
Like I said, the best you can do on this one is to plead ignorance.
continued Part 2 of 2
‘ but certain bl(ack)oggers bring it out in me.’
My point, exactly.
Khosi – >‘a group of menial workers in the kitchen of a large household’Nobody knows for sure why they were said to be black — perhaps the colour of the pots literally or figuratively rubbed off on them.< IN OTHER WORDS, THEY WERE NOT NECESARILLY black IN THE RACIAL SENSE, THEY WERE BLACK IN QUITE A DIFFERENT SENSE!! And by the way, I am also a “native” South African since I have been born here. But I agree with the good Prof – you keep on sidestepping the real issues at hand here – come on, give us our money’s worth with plausible argumets man?! I am almost tempted to say: “To cry racism in circumstances such as these is the last refuge of scoundrels.” There – I said it.
Now, tell us how Pikoli’s decision to arrest and charge Selebi posed a threat to national security, big enough to justify his being suspended (not put on long leave like Jackie Selebi – who once had the audacity to call a black female police official a ‘baboon’) and, after having been exonerated in the Ginwala report, fired.
Part 2 of 2
George Orwell once said:- “The nationalist not only does not disapprove of atrocities committed by his own side, but he has a remarkable capacity for not even hearing about them.”
Because you people were/are not aware of what apartheid was doing to black communities and how seemingly harmless words were given harmful meanings, you will not easily understand why I am protesting the use of ‘scoundrel’ to surly President Kgalema Motlanthe. Had you known this or even come close to acknowledge this you would have a far better chance at understanding the insult that is hidden in that word.
You do all of this because you are in blind pursuit of you liberal idealist agendas. That is fine. That is your prerogative.
But always remember that a rose may smell better than a cabbage but it does not make better soup. I forget who said that, but I can find out.
Khosi – >George Orwell once said:- “The nationalist not only does not disapprove of atrocities committed by his own side, but he has a remarkable capacity for not even hearing about them.”<
Well, good for ol’ Georgie, he got you there eons before you even though of starting to blog here. HA, haa, haaa.
Oh it was Henry Louis Mencken. Exact words were ‘Idealist: One who, on noticing that a rose smells better than a cabbage, concludes that it will also make better soup”’
Anonymouse // Dec 9, 2008 at 7:45 pm
For a magistrate, you really are slow sometimes. But I guess what you are really wanting to say is:- “To cry racism in circumstances such as these is the last refuge of menial workers in the kitchen.”. Which in the context of South Africa would mean black people.
Anonymouse // Dec 9, 2008 at 7:58 pm
Actually, I meant white people who always plead oblivion to the atrocities of apartheid will leaving and eating the fruits of apartheid.
But you are slow. So I understand.
OK, so in the South African context “Black Beauty” would mean?
But that George Orwell quote [see Anonymouse // Dec 9, 2008 at 7:58 pm], thats a real gem! What does the “N” in ANC stand for again?
A bit slow, eh Khosi? Why don’t you rise to the challenge above. I notice you have not even read the new post above?
I’m getting tired and bored here. Now I’m off to writing a judgment on why a WHITE MALE accused person should not be granted a permanent stay of execution (oops, prosecution) on a very serious charge. G’night!
No, it wasn’t ‘baboon’. Anonymouse: Selebi called her a ‘chimpanzee’. As there is only a minute genetic difference between chimpanzees and humans, mightn’t he be exonerated?
Why do you wish people ‘a good day’, dontgetmestarted, when what you really wish for is that they should go boil their heads?
Khosi, your (fake?) outrage is so unhinged that it is not really worth engaging in an exchange with you on this completely irrelevant issue. You have failed to engage in any meaningful way with my post so I will ignore future posts by you on this issue. It obviously reveals more about your demons than my perceived racism. Good night and good luck.
PS: I have the details of a good shrink if you are interested.
Pierre De Vos // Dec 9, 2008 at 8:41 pm
Hahaha…
I wonder what one should call this last refuge by Pierre.
Oh I know…
Sarcasm, the last refuge of the puerile….
Khosi @ many places above.
You need a lesson in lexicography.
First, as Prof pointed out, he was obviously adapting Johnson’s famous quote – not, as you say, using ‘a perfectly noble quote in an imperfectly wrong context’. (What exactly, by the way, does the phrase ‘imperfectly wrong context’ mean? You are quick to criticise PdV’s ‘careless’ use of language, but yours doesn’t stand up to close scrutiny either.)
Second, since you are so strong on context, let us look at Johnson’s original words, conveniently spoken by a man who wrote a dictionary. Johnson’s own definition:
Scoundrel – a mean rascal, low petty villain.
Black-guard – a dirty fellow, low term of abuse.
No immediate link, other than – like thousands of other words in English – they are terms of abuse.
The fact that Johnson was probably referring to Edmund Burke doesn’t matter. He used ‘scoundrel’, and, if pressed for synonyms and being a great man of letters AND a lexicographer, he might well have come up with ‘black-guard’ and THEREFORE Johnson was being racist. (Despite there almost certainly being no racial overtones to the word in the 18th century.)
Third, unless you trawl the net for one of those ridiculous online thesauruses that throw up every possible ‘synonym’ for a word, you would battle to find a dictionary or thesaurus that lists blackguard under scoundrel. The definitions you yourself give do not include ‘blackguard’. If you resort to the online resources you come up with such nonsense as ‘beachcomber’ being a synonym for blackguard or even ‘object of compassion’. God forbid I ever describe someone as being an ‘object of compassion’! Before I knew it, racism most foul would be the cry all round me.
No, you need to look up ‘blackguard’ to find – in SOME thesauri or dictionaries – ‘scoundrel’ as part of its definition and then, by a process of induction (discussed in an earlier blog), insert it into the definition of scoundrel to come up with your preposterous accusation of racism. This is stretching language to the extreme. You would want each of us to have a thesaurus at hand to consider ALL the possible connotations of a word we might wish to use and the connotations of its synonyms before we use it. That way madness.
Fourth, I would like to know how many readers looked at the title of Pierre’s blog and thought ‘scoundrel=blackguard=racist’. I would also like to know, Khosi, did you honestly think of ‘blackguard’ when you saw that or did you have to resort to a dictionary to drag out your tenuous link? It took you about 15 entries and most of a day to get there. Perhaps you did think of it without recourse to a thesaurus and without having to work hard to manufacture a racial slur in Pierre’s heading, in which case, kudos.
Lastly, you accuse Pierre of wanting us to believe he is comparable to Johnson, simply because he quotes the man. Well, in that case, Khosi, I ask only who quoted Orwell and Mencken? So, just to end with a quote from someone I think I can safely quote without being accused of immodesty:
“If [the media] convince enough voters that that is negative campaigning, for me to call Barack Obama out on his associations then I don’t know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks by the mainstream media.”
@Khosi:
You speak so well.
PdV // Dec 9, 2008 @4.05pm addressing me:-
“Section 41 . . . may not apply to independent constitutional institutions who do not strictly speaking form part of any of the three spheres of government. You may well differ from this interpretation but my interpretation is legally plausible (I believe more so than yours, given the requirements of for the independence of the NPA).”
***
What you originally wrote in your article, however, was more assertive:-
“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.”
And in your first response (// Dec 9, 2008 @9.45 am) on my observations about chapter 3 and the NPA’s status as part of the executive:-
“Your interpretations seems sloppy and, well, plain wrong.”
***
The softening of polemic between 9.45am and 4.05pm can only be attributable to my post // Dec 9, 2008 @10.53 am. Let me assist you to tip the balance more in favour of my view on the question where the NPA is actually situated within government:-
The NPA is within the national sphere of government, forming part of the executive. Kriegler J. (writing for a unanimous Court) said it in Potsane (2001); IDASA (following Potsane) said it in further submissions to Parliament over the NPA Amendment Bill [para.14]; The South African Institute For Advanced Constitutional [etc] Law said it in submissions to the Ginwala Enquiry [para.2, but giving the wrong citation]; and Ginwala said it in that part of her Report which is uncontroversial, reflecting the consensus of all the parties [paras.47, 52]. Who is on your team?