Quote of the week

[Venezuelan President Nicolás Maduro] possesses, however, few of his predecessor’s resources, lacking not just oil revenue but Chávez’s surplus of charisma, humour and political skill. Maduro, unable to end the crisis, has increasingly sided with the privileged classes against the masses; his security forces are regularly dispatched into barrios to repress militants under the guise of fighting crime. Having lost its majority in Congress, the government, fearing it can’t win at the polls the way Chávez did, cancelled gubernatorial elections that had been set for December last year (though they now appear to be on again). Maduro has convened an assembly to write a new constitution, supposedly with the objective of institutionalising the power of social movements, though it is unlikely to lessen the country’s polarisation.

Greg Grandin
London Review of Books
13 August 2009

Pikoli = 1: President of the RSA = 0

It comes as no surprise that Vusi Pikoli won the first round in his legal battle with the President of South Africa when the North Gauteng High Court granted an interim interdict prohibiting the President from appointing a permanent National Director of Public Prosecutions (NDPP) until such time as Pikoli’s case had been dealt with. It was always going to be difficult for the President to argue that he had a right to appoint a new NDPP, despite the fact that Pikoli is challenging the legality of his firing.

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

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

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

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

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

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

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

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

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

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

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

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

Herewith endeth my little sermon on interim interdicts.

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

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

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