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.
Good article Prof. As a side note, I find it interesting that when Pikoli was “fired” Tokyo Sexwale reportedly offered him a high paying job at Mvelaphanda as chief legal counsel. A typical sleight of hand from Mr Sexwale in order to serve party interests and prevent the likelihood of the present scenario, of a high probability of Pikoli remaining the NDPP until 2015. This would obviously adversely impact the present government’s intent with regard to the preferred occupants of the key security, justice and defense clusters. Read with the purported offer of R10 Million to Pikoli this further gains a great deal of credence. No doubt, we live in interesting times. (Lastly, and to digress, I was informed that Sexwale candidacy at Polokwane was meant only to divide votes away from the former ANC’s president, in favour of the incumbent president of Republic. Tokyo is clearly quite the wily political operator!).
Prof,
Did Jacob Zuma file an affidavit in the above matter and if so where can I get it?
I read the affidavit of Mbeki and concluded that he was being economical with the truth or at best confused.
Then I read that of Brigette Mabandla and I was not impressed as well. It lacked details and, if my memory serves me well, contained inconsitencies when looked at in view of all the facts and surrounding circumstances of the case. I understand that her’s was a confirmatory affidavit but it lacked details considering the big role she played in the matter.
I also read that of President Motlante and he merely re-iterated that he will divulge more facts in the main affidavit to be filed in due course. It was also not impressive.
Gwen // Aug 13, 2009 at 11:19 am
Slippery’s letter to the CJ is at
http://www.theweekender.co.za/hlophe.pdf
The second sentence of paragraph 4 has had me in stitches all morning – “Despite the unpleasant issues pending before the JSC and THE MANY ALLEGATIONS THAT HAVE BEEN MADE ABOUT YOU, I continue to hold you in high regard…” (my caps). Parallel universe?
Gwen, I copied your entire post from the previous topic because I would really really like Prof de Vos to convince me that I should, like him, hold this Sello guy with high regard as a journalist.
Pikoli show them whos your daddy
Bottom line is pikoli was illegaly fired. If Pikoli wins his case in November it would vindicate all of us who are in support of him that the government was politicly interfering in the NPA and the charges to the arms deal be re-opended
I think its gonna be an amazing test, you could land up with 3 presidents in the dock and least not forget that amazing “ad hoc committee”
Sne, is it not highly disrespectiful to refer to the President as just “Jacob Zuma” and later on refer to his deputy as “President Motlanthe ? even in retrospective terms there is is no explaining this. Anyway Prof, for crying out loud now- what the hell is the contextual meaning of “fit and proper” person? Cos to me, this is going to be the ultimate question in Nov and we must start attempting to answer it NOW.
Mzo, I am sure Sello can speak for himself, but you ask so let me say the following. I have often been misquoted by journalists who either did not understand what I was saying or twisted my words for effect. On occasion I have also had a fright when seeing something I did say in print, regretting the substance or tone of a statement which in the hard light of day looked a bit harsh. Sello has often quoted me and not once had I any reason to complain about the accuracy of his work. I have found him well informed on legal issues, fair and open minded to a fault and meticulous. I met him at a conference on judges and the media and even after a beer or two, he did not express any personal opinion on the legal controversies of the day and to this day I have no idea what his political leanings might be or what his ideological commitments might entail. I suspect it was exactly these qualities which allowed the Judge President to speak more freely than he otherwise might have when he had dinner with him recently. It is of course possible that Sello made up all the quotes in his article because he is part of a dark conspiracy against Hlophe. With the available evidence at my disposal I would say, however, that it is highly improbable. We know Hlophe has lied before. We know on many, many, different occasions he has denied saying things that appears to have incriminated him, despite strong assertions by others (including fellow judges and advocates) under oath that he had indeed said these things. We know the alleged statements were made over dinner so it is highly likely that alcohol was being consumed – something that often makes one incautious. How probable is it that Hlophe (and him alone) has always spoken the truth and ALL THE OTHER people making allegations about what he said was lying? It reminds me of the joke about a women who had lost three husbands through drowning in a bath and was then charged with murder and the judge saying something like: “Losing one husband was unfortunate. Losing a second husband was careless. Losing a third husband, well, was murder.”
Prof,
It appears that there is at least one clear LIE from Sello, even assuming that the quotes were correct, he said Hlophe had an EXCLUSIVE INTERVIEW with M&G. EEven reading his article, it gives an impression of an orginased interview where Hlophe was just pouring out his misery to this guy. I think it is now clear that there was no such. Sello is lying through his teeth and I think the supporters of Hlophe would be justified in asking the question, WHY?
Sorry Prof, I will not trust your judgment of this man. To me he appears to be nothing but a hopeless and desperate journalist trying to create controversy where there appears to be none.
I’m not suprised though that you would still choose to believe him on the subject at hand. Afterall, he seems to be singing in your choir, or at least not in the opposing choir.
On a lighter note Prof, if you were to endorse the quote by that judge (which you seem to do by your line of reasoning) I would be very suprised that you would still call yourself someone who believes in the RULE OF LAW.
Surely it cannot be that we convict people on the basis of how many times they’ve been accused.
“It reminds me of the joke about a women who had lost three husbands through drowning in a bath”
Errmm, Pierre I think that isn’t a joke so much as the underlying facts in the one of the cases relevant to our similar fact rule of evidence is based. But maybe my memory fails me.
Turning back to the Hlope and Pikoli drama: Imagine a world in which Pikoli succeeds, the JSC lets Hlope off the hook and then the re-appointed NDPP tries Hlope for attempting to subvert the course of justice. Improbable? Maybe. Impossible? No. The thought is endlessly entertaining. Pikoli is I think also a sufficiently strong man that it is not beyond him to pursue Zuma to trial. I’m not saying that this is wise or necessary or even desirable (possibly quite the contrary). But strength to Pikoli either way if only because of the independence of action and principled position that he appears to stand for. Not many I know would have turned down the R10 million.
“Slippery’s letter to the CJ is at
http://www.theweekender.co.za/hlophe.pdf”
And signed PP too. One would have thought that such an important and in a sense intimate, letter would be signed personally. Or perhaps it is better to have it signed by someone else on your behalf just in case you need to “correct” some of the content later?
CD
Or you are just not able to sign the letter at that particular moment!!
Prof
I am not in the legal field but a scientist so excuse my ingorance. Are the courts not suppose to weigh the interest of the nation in having a fully functioning NPA against Pikoli’s personal interest which he can be compensated for if the state is found to have treated him unfairly? Can you really force an employer to take back an employee especially on a political appointment position? What happens to the rights of the President, to appoint his choice of NPA head, can Pikoli deny Zuma that?
Gwebecimele – great name for a scientist!
Prof: If Vusi wins in November what would this mean for National security?
Gwebecimele, This factor was indeed taken into account but the court felt that the NPA had not faced too much difficulty operatingw ith an acting head. Moreover, the President may appoint a NDPP when a vacancy occurs. But we do not know whether there is a vacancy as Pikoli is challenging the legality of his firing. If he was not fired legally there is no vacancy. To allow the President nevertheless to go ahead and appoint another NDPP would mean the court is sanctioning illegality and would have implications for the constitutional requirement that the NDPP must act without fear, favour or prejudice as it would allow the President to illegally fire a NDPP without legally valid reasons and appoint a new one, thus undermining the independence of the institution.
Peter
Scientists do make judgements with their eyes closed.
Prof
Currently the NPA is not functioning optimally and certain appointments cannot be concluded until this Pikoli issue is resolved. I am not questioning the legality of Pikoli firing but I am wondering whether should we all be held to ransom until an individual interest is addressed. What if the ANC /President has already decided to appoint a new head? The outcome of Pikoli’s case is irrelevant and money has served as a compensation for many unfair dismissals why not this one. The fact is there were adverse findings on Pikoli by Ginwala and that cannot change. The only challenge is that those adverse findings are different from the reasons that were given for firing him. Let him win, clear his name and leave. Life has to go on for all of us. This constitution that we hold dear has been found wanting on a lot of issues and it must be revised. This one decision will not be the nail to the coffin but will ensure that we are starting on a clean slate.
I must agree with Gwebecimele’s view on the functionality of the NPA. The decision not to prsecute Mr Jacob Zuma before he became President Zuma immediately springs to mind.
More on Pantazis and Wits Law School from Wits student newspaper
Law school loses a family
Zaheer Cassim
The Oliver Schreiner School of Law is set to lose a family of three respected academics at the end of this term.
Professor Farouk Cassim and his two daughters, Rehana and Femida, who are both senior lecturers, will be leaving the law school.
Students and staff interviewed were dumbfounded when they were told of the exodus of the three Cassims.
Fourth-year law student Dalene Moodley expressed her concern: “The good ones [lecturers] are leaving. It’s upsetting. People were moving into our class just for Rehana and she went out of her way for tutorials.”
Another student, Bongi Nkosi, was taught by all three Cassims during her four years at Wits. She said: “It’s quite sad because the law school is losing brilliant lecturers.”
Advocate Kevin Malunga, a lecturer of Business Enterprise, spoke highly of the contributions Farouk Cassim had made at the university and to the country.
“He’s a delightful, principled man. He’s got strong opinions and believes what he stands for.”
Malunga was the only lecturer who would comment on the issue. Other lecturers refused to comment.
Femida Cassim, with the consent of her father and sister, issued a statement to Vuvuzela, saying why they had decided to leave. “We are leaving due to professional difficulties that all three of us experienced individually with Prof Angelo Pantazis (the Head of the Law School).”
Asked about the loss of the three academics, Professor Angelo Pantazis, Head of the School of Law, said he was “not aware of any problems”.
He went on to say that “Professor Farouk Cassim has taken early retirement. Dr Femida Cassim and Ms Rehana Cassim have resigned. Dr (Femida) Cassim and Ms (Rehana) Cassim were promoted to Senior Lecturer on 1 April 2009.”
Acting Dean of the Faculty of Commerce Law and Management, Professor Katherine Munro, was disappointed that Femida and Rehana had chosen to leave after being promoted to senior lecturer status, just under a month ago.
She explained that Farouk was scheduled to leave at the end of this year, but had chosen to leave earlier. Munro assured students that the Cassims’ posts would be filled by next term. She added that the Oliver Schreiner Law School still remains one of the best law schools in the country.
Human Resources Manager Bhavna Patel confirmed that the university had already begun the replacement process.
I remember a movie that I watched a fairly short while ago called ‘The Kingdom of Heaven’. I did not find it especially enjoyable but the king in the movie uttered something that I catch myself recalling now. He said something along the following lines: one cannot complain that ‘virtue was not convenient at the time’.
An endearing sentiment indeed. And it strikes me as being equally pertinent to constitutional duties.
Sadly, Zuma has illustrated yet again that he and his party will gladly recognise those duties which are dubiously convenient.
Leigh
I am quite interested to hear your take on the Hlophe’s letter to the CJ. In particular, I would really like you to give me your view on the following issues:
(1) Do you think Sello had an EXCLUSIVE INTERVIEW with Hlophe, as alleged in his article and as his article would suggest?
(2) If so, what leads you to that conclusion?
(3) If your answer to (1) is in the negative, why do you think Sello would have incorrectly referred to his discussion with Hlophe’s as an EXCLUSIVE INTERVIEW – basically, why did he lie about it?
(4) If you subscribe to the view that Sello lied about having an EXCLUSIVE INTERVIEW with Hlophe JP, do you think it’s possible that he could be lying about some/all the contents of his article as well?
(5) Do you think it’s possible that Hlophe would have said he would never shake the CJ’s hand when in fact he did so (twice) fairly recently?
(6) Do you think Hlophe’s explanation to the CJ is believable? – in other words, if the explanation was coming from someone else (say the roles were reversed, it was from the CJ to the JP), would you be inclined to believe it?
I’m sorry for asking too many questions but I think
…..your take on this would, as often the case, be insightful.
Mzo, the premise of your questions seem to be that Sello lied. We do not know that. If he asked Hlophe whether he could take notes and indicated it might be used, surely it would still be an exclusive interview – albeit in a Restaurant? What strikes me is that the sentiments and tone of this letter completely contradicts the sentiment and tone of Hlophe’s various affidavits as well as his testimony before the JSC. Relevant?
No Prof, otherwise what would be the point of question 1?
Okay Mzo, I will try to answer your questions.
First of all, I must state that I have the utmost respect for Sello, and I know how deeply he cares for his profession and his professional integrity.
I hope that the powerful don’t manage to intimidate him, and that he will stand strong against the onslaught.
He cannot stand injustice, and sees his career as a calling.
And he is everything but stupid.
Now – how stupid must even a stupid person be to make up “lies” implicating a senior member of the bench and then publish them under his name in a major weekly?
Really, what are the probabilities?
If they really are lies and he made them up, do you think he thought perhaps Hlophe wouldn’t be bothered?
No.
He heard what Hlophe said and decided to print the information. I believe Hlophe saw a black face and though he could let rip – just like some white people annoyingly look at me and think i must be a fellow white racist and then let rip.
a serious error in judgment on hlophe’s part, perhaps he’ll be more careful in future, although that’s unlikely if he can just keep on saying what he wants and then claim to be misquoted or framed as he likes to do.
alrighty then, to your questions.
(1) Do you think Sello had an EXCLUSIVE INTERVIEW with Hlophe, as alleged in his article and as his article would suggest?
THERE ARE A NUMBER OF BENIGN EXPLANATIONS FOR THIS ONE. FIRST OF ALL, DECONSTRUCTING THE TERM EXCLUSIVE INTERVIEW, IT IS NOT EVEN A FALSE CLAIM.
FOR SELLO DID INTERVIEW HLOPHE (HE ASKED HIM QUESTIONS AND HLOPHE ANSWERED) AND NOBODY ELSE DID, WHICH MAKES IT EXCLUSIVE.
THERE IS ALSO THE POSSIBILITY THAT SELLO DIDN’T EVEN WRITE THOSE WORDS HIMSELF, AS THERE ARE MANY THINGS THAT HAPPEN BEFORE THE FINAL COPY APPEARS. ONE OF THESE THINGS IS THE FACT THAT THINGS LIKE ‘EXCLUSIVE” DRAWS READERS AND MAKES COPY MORE TITILLATING. SAD, BUT TRUE. IF STORIES WERE ALL DRY FACT NOBODY WOULD READ THEM. THAT’S WHY YOU HAVE CERTAIN JOURNALISTIC DEVICES.
NO, SELLO DID NOT MEET HLOPHE AT A PREARRANGED TIME AT A COFFEESHOP SOMEWHERE OR IN HIS OFFICE. SO IT IS NOT AN ‘EXCLUSIVE INTERVIEW’ IN THAT SENSE.
BUT THEN, THAT IS NOT THE ONLY MEANING OF EXCLUSIVE INTERVIEW.
I THEREFORE SUBMIT THAT THIS CANNOT BE HELD UP AS SOME KIND OF ‘LIE’ WHICH TAINTS THE REST OF THE STORY.
(2) If so, what leads you to that conclusion?
ANSWERED.
(3) If your answer to (1) is in the negative, why do you think Sello would have incorrectly referred to his discussion with Hlophe’s as an EXCLUSIVE INTERVIEW – basically, why did he lie about it?
ANSWERED.
(4) If you subscribe to the view that Sello lied about having an EXCLUSIVE INTERVIEW with Hlophe JP, do you think it’s possible that he could be lying about some/all the contents of his article as well?
ANSWERED.
(5) Do you think it’s possible that Hlophe would have said he would never shake the CJ’s hand when in fact he did so (twice) fairly recently?
OH INDEED, INDEED.
SEE THAT IS THE THING ABOUT MANIPULATIVE LIARS. THEY ARE NICE TO YOU IN YOUR FACE AND STAB YOU IN THE BACK. IT’S CALLED POLITICS, AND IT’S WHAT HLOPHE IS GOOD AT.
THERE ARE ALSO PEOPLE WHO GATHER CHIPS DEPENDING ON WHICH COMPANY THEY HOLD.
SO IF I WANT TO SHOW HOW POWERFUL AND COOL I AM, I SLAG THE CHIEF JUSTICE IN FRONT OF MY FRIENDS. AND I DON’T HESITATE TO DO SO IN FRONT OF A BLACK JOURNALIST, BECAUSE HE IS “ONE OF US” AND CAN BE RELIED UPON.
(6) Do you think Hlophe’s explanation to the CJ is believable? – in other words, if the explanation was coming from someone else (say the roles were reversed, it was from the CJ to the JP), would you be inclined to believe it?
WHAT A CROCK OF S”**T
AFTER ALL WHAT HLOPHE HAS SAID ABOUT THE CONCOURT, ITS JUSTICES, THE JSC, THE CJ… JUST READ HIS COURT PAPERS.
THE PROBLEM IS THAT THROUGH ALL OF THESE THINGS THE RELEVANT AUTHORITIES DON’T SEE THE WOOD FOR THE TREES.
IT’S BEEN HLOPHE’S SAVING GRACE.
THE AUTHOR OF THE RACISM REPORT TURNS OUT TO BE THE RACIST DELUXE.
WHO WOULD’VE THUNK IT!
I’m sorry for asking too many questions but I think
IT’S OK, BUT DO YOU?
Prof, going back to Bhekicele (or is it Gwebecimele? nice name bydaway!)….What would happen in the event where the presidency was to advance the argument that “employer-employee relationship has ireperably broken down” in this Pikoli case, surely the courts cannot and should not “force” an employee onto the employer? I just trying to think as a shopsteward here! I dont know, maybe the only way for the state would be to prove he wasnt “fit and proper”, whatever that means!
Mzo – in a race to see who is the greatest liar, you would have to admit that Hlope has something of a headstart. However, anything is possible. Hopefully the journalist will provide further background.
Spuy, in the Billy Masethla case the Con Court made much the argument you present here, so you are asking a good question. However, the NDPP is NOT equivalent to that of the head of the Intelligence Service because unlike Billy Masethla, Pikoli is/was the head of an INDEPENDENT body, the NPA and – constitutionally speaking – there should not be any employee-employer relationship between the President and the NDPP. After the President appoints the NDPP, the latter is constitutionally REQUIRED to act “without fear, favour or prejudice”. If the President does not like his decisions there is nothing the President can legally do about that – unless the NDPP acted in a way that disregarded the prosecuting policy agreed to between the NDPP and the Minister or failed to provide the Minister with the information requested – something that Pikoli cannot be charged with. He always acted in accordance with the policy and always provided the information as required (even if the erstwhile Minister could not always remember this because she had one cup of tea too many). If the President could fire the NDPP because the NDPP did not do as the President required, it would open up the possibility for the political manipulation of the NDPP – exactly what President Zuma and his supporters claimed happened with the previous NDPP, Bulelani Ngcuka. So it is in everyone’s interest that there is no political manipulation of the NDPP and for that reason, even if the President HATES the NDPP he should not be able to fire him unless the legal requirements are met – something, in my opinion,. which did not happen in this case.
Maya
Thank you for indulging me but I think your supposed knowledge of Sello and your apparent dislike of Hlophe JP somehow clouds your judgment. Just like Prof, you are trying so hard to find a possible justification for your trusted Sello in the event that Hlophe’s version that there was no exclusive interview turns out to be true. I also note that Prof has now moved from expecting a tape recorder (as you would normally have in an exclusive interview – because it would have been planned and agreed) to now talking about “notes”. It’s tough when you are trying to find something to stick and you feel like it’s there but you can’t get your hands on it – it can be very frustrating!!
It’s interesting for me that the M&G did not carry the story about Hlophe’s letter to Langa. Seeing that they ran the original “exclusive” story, one would have expected them to have the letter before the Weekender. Could they have deliberately chosen not to publish it – me hopes not!!
Prof.
My view is that in many a case lawyers just oppose for the sake of doing it. I think it is a bad culture. Aren’t we supposed to put the interests of the client ahead of the money that comes with the brief?
Case law on similar matters is in abundance. No court in our land (at least where a sober judge was presiding, for we know nowadays they drink tea and then bad things happen) would have allowed a situation where an appointment of a permanent NDPP is made whilst the “previous” NDPP is currently before Court seeking reinstatement on the basis that his dismissal
was unlawful.
It does not matter whose power is it to appoint the NDPP. In fact that should not have been brought before court at all for its an issue that is neither here-nor-there. The sitting President’s power to appoint the NDPP was not being challenge but rather the intention to maliciously pre-empt and undermine the outcome of a matter that is currently before Court.
Now someone tell how did the state miss this, with all the resources at its disposal and to which I am a loyal contributor with my taxes. At first I thought the state was just testing waters and would not by any chance go to Court.
Gwebecimele,
Surely no body can dispute that it is within the powers of the President and the President only to appoint the NDPP. However, Mr. Pikoli is not seeking to force the President to appoint him. All he wants is for the court to have him reinstated. If we were to allow a situation where the powers that be can just for no reason get rid of people in general (no just the NDPP) because the public purse is so deep and can pay anything to anyone, rampant corruption would be unleashed to unimaginable proportions.
This decision against the State President must be lauded. Indeed it must and so is the fortitude of Adv. Pikoli. It does not only protect Adv. Pikoli but you and I as we may find ourselves in a similar position tomorrow wherein we will be wantonly removed from our jobs because we are perceived, rightly or wrongly to have a potential of refusing to tow the line.
When that happens the rule of law will be a thing of the Mandela era, no more and dictatorship will.
The greatest irony of all is that of all the differences that I have witnessed in the past and currently between the sitting President and former President Thabo Mbeki a glaring and only similarity they have is their resolve to have Adv. Pikoli knocking next door looking for a job. They could not agree on anything when their organisation was on the brink of premature collapse. This is proof that even the worst of enemies always have propensity to unite against a common one.
Spuy
The point that the employer / employee relationship has broken down irretrievable would expose the state and its officials for the liars that they really are.
In fact that kind of argument ought to have been raised from the very word go. Instead, former President Mbeki forgot that he is the employer and said the relationship between Adv. Pikoli and Mrs. Bridget Mabandla has broken down irretrievable, which in my view is inconsequential. When President Thabo Mbheki said that and did not allege that it is his and Adv. Pikoli’s relationship that had broken down irretrievably, he closed the door for the state. Former President Mothlanthe could not have said that for at the time when he was appointed caretaker, Adv. Pikoli was already on suspension. President Zuma also cannot say that for he has not worked with Adv. Pikoli, the only work he has done with him is face him in Court last week and lose.
Mzo,
While what you say makes a lot of sense, but I’m afraid I tend to believe Sello’s report, simply because Sello has nothing to gain from the story, while Hlophe has so much to lose if the story is true.
I have to agree with Pierre that Hlophe may have had enough to drink to the extent of losing some of his inhibitions. That happens to the best of people at times.
Judge President HLOPHE’s letter of 6 August to Chief Justice LANGA was signed by his Registrar (Secretary) Mrs Santie CRAFFERT.
Dumisani Mkhize // Aug 13, 2009 at 10:43 pm
And I suppose Sello is immune from the effects of alcohol!!
As for who you choose to believe, I have no issues with that, save to warn you that your reasoning for the belief you have is, at best, dangerous for who really is to say that Sello has nothing to gain. It’s a doggy doggy world out there, things are not always as they seem and I can think of a few reasons why Sello would write a story, knowing fully well that it is not true (note: at this stage, I do not know whether he is lying or not and I won’t know probably until such time that the Press Ombudsman makes a decision on the issue – assuming of course that Hlophe JP is serious about lodging his complaint).
http://yalepress.yale.edu/book.asp?isbn=9780300124729
This will be a great read regarding the limits on freedom of expression/press!!
Only released in November. But thanx to corruption in SA Post Office, ordering it through Amazon will cost you appr R600.
Tsk…. Tsk…..
We’re getting intellectually deprived living on this doomed continent.
Sello gives his account in the MG this morning. Only transcribed the interview afterwards, but is certain of the correctness of the article.
My own view is that I would not trust Hlope in this he said she said, based on his past dishonesties, and because Sello has been vetted by quite a few on this bored.
Mzo, in The Times this morning Unisa Professor Shadrack Gutto comes up for a solution to our controversy. See http://www.thetimes.co.za/News/Article.aspx?id=1049709. He believes Hlophe is caught between a rock and a hard place — he must take legal action against the newspaper if he is to be believed, or live with the allegation that he made a racist remark hanging over his head. Gutto said: “He has written to explain, but not to apologise. This is exactly why he has become so controversial. Should he [Hlophe] fail to take legal action, this raises serious concern that he did, in fact, make these statements.” There were at least six people at the table, so he could get them all to make sworn statements (under oath) saying that Sello made everything up and sue the Mail & Guardian for defamation. If he does not, well, he is either an extremely kind and generous man or he is lying through his teeth. As he has lied thropugh his teeth before, I tend towards the latter view.
Mzo, sorry for responding to your post so belatedly. And before I turn to your questions, I would just say that I proffer only my take and I would be happy to look at criticisms which could well expose any doubtful reasoning on my part.
To consider your first question and certain investigations which seem to be ancilliary thereto: for a start, I would understand exclusivity to mean that there was a fairly clear understanding between Hlophe and Sello that the latter would be the only person to whom the former would talk about certain topics.
I am certainly not confident that such an understanding was reached. But I would also not rule out the following interpretation: Sello was the only journalist present who asked questions of Hlophe which, on a fairly reasonable construction, can be taken as being an exclusive interview.
But to answer the question, I simply do not have enough to go on so I would prefer to reserve judgment on whether the interaction can properly be called an exclusive interview.
With respect, I would also prefer not to comment on your second, third and fourth questions as (a), I do not have enough facts at my disposal for two and (b), questions three and four call for much in the way of conjecture.
I enjoyed looking at questions five and six and I tender my answers below.
As regards questions five, I do think it is possible that Hlophe would have said what he is alleged to have communicated despite the fact that he has shaken Langa CJ’s hand in the fairly recent past. And I would offer three reasons in support of my opinion.
The first reason is that it seems to me that Hlophe has recently begun adopting a fairly political approach to fast-tracking his judicial career. That is, his conduct to me seems to denote something of the following: he aims at procuring the support of enough of the citizenry to inspire Zuma to appoint him on the basis of popularity. And refusing to shake the hand of someone who was party to a conspiracy against him might go down very well with various factions in our society who curiously seem to back the ANC as a matter of course but not logic.
The second reason is that the recent preliminary hearing was Hlophe’s first appearance at a proceeding in respect of the present spat. I think that would have chafed a bit. It certainly appears that Hlophe was upset during the course of the investigation given the mightily abrasive things that he had to say while there. Thus I think that experience could reasonably account for Hlophe’s diminished courtesy.
And the third reason is that sometimes people just change their minds and behaviour – sometimes drastically.
With respcet, I am going to break your sixth question down into two separate ones. The first concerns whether I think Hlophe’s explanation is believable. The second goes to whether I would believe the explanation if it came from Langa CJ.
My answer is this: it could possibly be true coming from Hlophe but I am disinclined from believing it from him.
As mentioned earlier, Hlophe had some pretty strong things to say at the preliminary investigation. To say you were lynched is a very daring accusation indeed. So if Hlophe would say something so asinine, cack-handed and provocative at a JSC preliminary hearing, I think it is likely that he would say equally stupid things at a dinner table.
Langa CJ on the other hand has not lost his composure or, with respect, his dignified carriage once during the course of this very messy business. Thus I think it would be reasonable to give him the benefit of the doubt if he had offered such an explanation.
Mzo, you definitely succeeded in making me think twice before commenting on the news as reported by journalists – hopefully from now on a good dose of suspicion will guide my comments and arguments!
However, as good (and I’m not saying that it is) as your arguments may be for not believing Sello’s report, I think you should likewise guard against leaning too much towards the other end, i.e. playing Devil’s Advocate just for the sake of it. Yes, Sello might have been “creative” with certain comments, who knows, but (my) logic dictates that it’s highly unlikely that the entire report is a figment of his imagination…
Mayflower, Leigh, Prof et al
I guess it’s always a difficult thing to do, trying to show the prejudices from the other side without necessarily creating an impression that you are betting for the other side.
For the record
1. I remain of the view that if the reports are true, the JSC should do all of us a favour and deal with the matter appropriately.
2. I hope Hlophe JP is serious enough about taking the matter to the relevant authorities, like the Press Ombudsman. I do not subscribe to notion that he HAS to sue for defamation otherwise his denial cannot be believed. I think he should, like everyone else, be allowed to take whatever step he deems necessary to protect his rights, not the one preferred by the likes of Prof Gutto et al.
3. I do not believe Sello is necessarily being the honest, professional and diligent journalist as some of the bloggers here would like us to believe he is. His failure to dispute Hlophe’s EXPRESS denial of an exclusive interview with his is telling.
4. Reading Hlophe’s letter to Langa, it makes a lot of sense to me and my suspicion is that it would to a lot of other people – problem is simply that it is from Hlophe JP.
5. I do not believe that a person’s “guilt” should be determined by how many allegations have been levelled against him in the past, especially when those have been dealt with by a constitutional body like the JSC – regardless of how we may all feel about the “verdict” they gave.
6. The one trend I note from most bloggers is that it is not so much about the credibility of the allegations or the explanations given than it is about WHO is involved. I think that is unfortunate, especially for people who purport to value the principle of the Rule of Law as well as the Bill of Rights enshrined in our Constitution. Judging a book by its cover is never a wise thing in my respectful view.
The double standards we see everyday in our public discourse is a big concern for me. On the one hand you have Adv Pikoli being offered some millions to basically “shut up and leave us in peace” – he rejects that and we all praise him as a principled man, correctly so I might add.
On the other hand, you have the very same people who objected to Adv Pikoli accepting the pay out supporting / considering or at least not being opposed to the possibility of Hlophe JP being offered the money to “shut up and leave us in peace”.
Seems to me that our moral standards depend on who is involved!!
Mzo, I would like to put forward two topics which are related. I shall present them in two separate posts as it strikes me that this approach stands the best chance at promoting clarity and focus.
The first concerns the following: I have for some while understood your basic grievance to be that you are erroneously taken for a Hlophe supporter. You regard this as being unfortunate because what you truly support is not Hlophe but rather the notion of fair treatment of even unpopular figures. Your grievance is, in some respects, justifiable.
Now some of our fellow bloggers seem to have formed the view that you are, for one with such a keen capacity for critical analysis, unduly sympathetic towards Hlophe. But that contention finds its basis in the assumption that clever people would necessarily want Hlophe condemned forthwith on whatever mere allegations there are that happen to reflect badly on him. So you are I think justified in dismissing that view.
But I would like to give you the chance to clarify a few things by responding – as I hope you will – to two questions.
First, do you think that Hlophe is at all responsible for the suspicion with which he is regarded?
And secondly, if so, do you think that while he is as entitled as anyone else to procedural fairness and the enjoyment of his substantive rights, that he will have to concede that he can blame only himself for the suspicion which he bears?
This is the second of the posts which I undertook to pen.
Hlophe had some mightily provocative things to say about Moseneke DCJ and Langa CJ at the recent JSC preliminary investigation. And as far as I know, he has yet to tender the proof which Moseneke DCJ dared him to produce.
My question is: can we say that Hlophe’s utterances about Moseneke and Langa at the investigation are consistent with his alleged refusal to shake Langa’s hand for his alleged reason?
Leigh
I think my answer will cover both questions, my view is that he is partly responsible for the suspicion. My view on this is based solely on 2 previous issues:
(1) I bellieve that, whilst I have no issues with the (in)famous Racism Report, I think the manner in which he handled it was not the best and necessarily created a platform for those accused to “fight fire with fire”, as it were. More like Adv Malunga & the Wits Dean scenario. I think he probably should have taken a view from those he accused in his report before the report became public. As you know, most of what is or is not racism is a matter of perception, so he may have received perfectly innocent explanations from those he accused for their actions, which would not necessarily be racist.
(2) His fiasco with Oasis was really unfortunate. He should have recused himself, period. However, on the Oasis matter I depart with many bloggers when it comes to how much of that should be held against him. The way I see it, he failed to recuse himself when, in my view, he should have and he was correctly lambasted for that. The rest of the ancillary issues on permission and all were dealt with by the JSC and they made a finding, whether you like it or not. End of story.
However, I fail to see how the other allegations (like calling a white person a piece of white s**t – which was WITHDRAWN) can be held against him or how he can be blamed for this “controversy”.
I have no control over how many people will accuse me of this or that and it would be really sad if I would be judged on the basis of how many of those allegations were levelled against me.
Leigh // Aug 14, 2009 at 12:02 pm
Leigh, I have difficulty in answering this question because, firstly, I have great difficulty in believing the statement alleging that Hlophe refused to shake Langa’s hand for the stated reasons because I know Hlophe has recently been represented by white Counsel. It is unlikely that he would not shake hands with his legal representatives. It is also unlikely that he would tell Langa that they shook hands twice if that was not true.
Secondly, recent history tells me that things people say in Court papers do not necessarily tie up with things they say and do out of Court. A recent example being that of President Zuma and former President Mbeki. Pres Zuma said some harsh things about TM or his Cabinet but they always maintained that they were friends and there was no bad blood between them.
Some “advaice” for the JFH Alliance:
Perhaps they should be careful in what they wish for…
(er, if is truly “justice” that they seek for the (?)honourable judge).