If a news report in today’s Mail & Guardian is correct, Vusi Pikoli should immediately be re-instated as National Director of Public Prosecutions. According to the Mail & Guardian the confidential report of the Ginwala commission clears former president Thabo Mbeki of an abuse of executive power, while at the same time exonerating Pikoli. Apparently the report recommends his reinstatement as national director of public prosecutions.
Apparently the report finds that Mbeki did not interfere in the arrest and prosecution of police National Commissioner Jackie Selebi.
Our investigation shows that former speaker Frene Ginwala and her panel rejected suspended prosecutions boss Vusi Pikoli’s contention that Mbeki colluded with senior government officials to save Selebi’s skin. Instead, the report says justice department boss Menzi Simelane misled former justice minister Brigitte Mabandla and withheld information from her and the inquiry.
It further finds that: Simelane misled Mabandla, although she trusted him; Pikoli was lax in his handling of security clearance issues; and Pikoli gave former Scorpions boss Leonard McCarthy too much freedom.
It is difficult to analyse (or critique) these findings without sight of the full report. But a few preliminary observations are in order.
First, if the report does indeed find Pikoli continues to be a fit and proper person as required by the National Prosecuting Authority Act, we would then be able to conclude in hindsight that there was no reason for the then President to have suspended Pikoli and that the President had made a mistake in doing so.
While section 12 of the NPA Act allows the President to suspend the head of the NPA pending an inquiry into whether he is a fit and proper person, this suspension must be linked to a reasonable belief by the President that an inquiry could find that the NDPP is not fit and proper to hold office. If Pikoli is indeed exonerated by the report, it would constitute a slap in the face of Mbeki (or his legal adviser), as it would suggest that he was wrong to believe (if he ever did believe) that Pikoli’s actions made him not a fit and proper person to hold office.
Second, if the Ginwala inquiry had failed to obtain evidence that Pikoli was not fit and proper, it would be impossible for President Motlanthe not to reinstate him as NDPP. This is because the NDPP can only be fired on the basis of one of the objective factors set out in section 12 of the NPA Act. If an inquiry has now found none of these objective factors existed, then there was no basis for him to be fired and he would have to be reinstated immediately. Failure to do so might be construed as an attempt to interfere with the independence of the NPA and the NDPP as guaranteed in the Constitution and the NPA Act.
Third, if the Mail & Guardian report is correct, the position of the Director General of the justice department must be in serious jeopardy. If I was the director general I might feel aggrieved about such a finding, given the fact that the then Minister of Justice, the President’s legal adviser (who, we now know, played an important part in persuading – or “assisting” – Mokotedi Mpshe to cancel the warrant for Jackie Selebi’s arrest) and the President himself had not testified before the Commission.
If I was Simelane I might well have felt that I had been made the scape goat for the mess that led to the suspension of Pikoli. I would also wonder what happened on the day before Pikoli was suspended and what was said that day between the then Minister of Justice (apparently exonerated by the report) and Ginwala when they travelled together on an SAA flight to Pretoria.
However, one would have to wait and see how persuasive the actual report is, before making any definitive comments about its credibility and before casting aspersions on Ginwala. It might well be that her findings are well reasoned and well justified and that it shows convincingly that the director general was the villian in this drama. Who knows. One thing is certain, the sooner the President releases the report the better for all of us.
Let me repeat my post here in reply to Khosi when he provided a link to the article you have based your opinion on Prof Pierre…
Sne // Dec 5, 2008 at 9:15 am
Khosi,
Thank you for the update.
Right now it is still speculations so let us wait for the release of the Report by President, shall we? Given your vivacious argument above against “doctoring” by Mbeki et al of the Report relating to the Arms Deal, I am convinced that even this one will still be the same as that released by the Commission regardless of the finding adverse to Jacob Zuma’s claim of intervention by former President Mbeki…
The dishonesty continues;
Although Pierre de Vos concedes that the President is within his rights to act the way he did, if he feels the need, Pierre de Vos then tries to sugar gloss his failure to properly give credible analysis on this matter. He then says:-
“this suspension must be linked to a reasonable belief by the President that an inquiry could find that the NDPP is not fit and proper to hold office.”
And he links this fallacious statement to the NPA ACT. I would like to ask you, Pierre de Vos, to present the page and the line where this fallacious statement is accommodated in our NPA Act.
Spot on Khosi!
Khosi, so easy to bandy about allegations of dishonesty you are (as Yoda might have said). You might disagree with my interpretation of the NPA Act, but you should not accuse me of dishonesty. But hey, its Friday so let me try and humour you: Section 12(5) states that the NDPP can only be suspended in accordance with section 12(6)-(8). Section 12(6) of the NPA Act states that the President may PROVISIONALLY suspend the NDPP, but MUST institute an inquiry that must ascertain whether one of the objective grounds listed in 12(6) are present. The President can then request the NA to remove him from office if it was found that one of these grounds do exist. He CANNOT request removal for any other reason. As the CC has indicated legislation like this which gives effect to provisions in the Constitution must, if reasonably capable, be interpreted to conform to the provisions in the Constitution. Section 179(4) of the Constitution states that National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice. The CC has interpreted this to safeguard the independence of the NPA. Section 12(6) of the NPA Act must therefore be interpreted to safeguard this independence. My interpretation safeguards that independence. If section 12(6) in the NPA Act is interpreted to allow the President to suspend the NDPP without having a reasonable suspicion that one of the grounds set out in section 12(6) exists, it would allow the President not interfere with the NPA and its independence would potentially be fatally affected. Otherwise the President could suspend the NDPP for any reason – including to prevent the NDPP from arresting one of his friends! So either the Act is unconstitutional, or it must be interpreted in the way I did. Simple really.
Um, because president Mbeki suspended Pikoli without any valid reason?
Remember that Mbeki has been exonerated from interfering with the Jackie Selebi case. This is a different matter than suspending Pikoli. It may very well be that Mbei was mislead by Mokotedi Mpshe, Menzi Simelane and Brigitte Mabandla. Fact remains Mbeki suspended Pikoli without any investigation or commission of enquiry, probably only on recommendation of the ministers.
Again, we haven’t seen a public and transparent enquiry into the arms deal. All we have are internal (and highly subjective) investigations and reports which have not been made public. Then, the Scorpions were disbanded and incorporated into the allegedly corrupt police force. Coincidence?
It is my understanding that the prof did NOT concede that the president acted within his rights to suspend Pikoli, merely that the president did not abuse his power with regards to Jackie Selebi. Two different matters. The findings thus far imply that Pikoli was suspended by Mbeki with no valid reason. This does raise a question mark.
Pierre De Vos // Dec 5, 2008 at 7:15 pm
Wena Pierre de Vos, I am going to take you to the cleaners because I can see that you have not listened to me every time that I have said that you should not allow your hate for Mbeki to cloud logic when you are writing.
I asked you to give reason for an atrocious statement and you reply in wishy-washy that really does not warrant a response. But its Friday, as you say, so let me help you.
“You might disagree with my interpretation of the NPA Act, but you should not accuse me of dishonesty”
How can you even begin to interpret something that does not exist? I asked you to tell us where that fallacious statement, of yours, finds accommodation in law. That has nothing to do with interpretation. What you were trying to do is to insert something, that suits you, into the NPA act so that you would be able to interpret that act in a way that pacifies your previous faulty analysis on TM. That is simple atrocious.
The law allows the President to ask the question on whether the NDPP is ‘fit and proper’ to hold that office. There is nowhere in any of law, that prescribes when such a question should be asked, nowhere. The perogative is entirely the presidents.
Furthermore and zooming into your fallacy and dishonesty, you say:-
“that an inquiry could find that the NDPP…….”
Again, the law allows the President to ask a question on whether the NDPP is fit and proper for his/her position. Where in law does it say that particular question should be rhetorical in nature?
But let me teach you something for nothing. The least you can argue, is that the President had no reasonable justification to ask the question into the NDPP’s fitness for office. At least there, exist room for your subjectivity. Even there you’d still be weak given the fact that the inquiry did find, according to M&G, that the NDPP was lax on security issues and also gave a subordinate to much power and goes on to define these as ‘shortcomings’. And you cannot insert a reason based on a preponderance of probabilities.
Khosi, the interpretation proferred by PdV is very correct but the President would have had reasonable basis to intervene on the strength of the reports advanced by the Minister and the DG. That is enough. If he was misled that does not put the President at fault.
If indeed a person hires former aparheid operatives or security companies that are not vetted by the NIA as required by legislation such person is unfit and improper to ocuppy such a sensative position.
A contrary finding will be irrational thus can be faulted in a court of law in order to secure the ultimate removal of the DPP.
Motlante is such a wonderful President, he might reinstate the chap. I do not know where Prof got is that you must fnot fly in the same plane with a potential witness in an inquiry.
You can even greet and eat from the same table during the inquiry so long as you do not entertain the relevant issues to the enquiry.
A person does not have to harbour an unreasonable apprehension of bias fostered by merely travelling in the plane. I hope this was made in jest.
if you are a chair of the commission and there is a witness in the same plane you must not cancel the flight and get late to your destination! I think the report must be released before we lose appetite of the debate.
I will have to write a Petition for urgent release or have a direct application to the CC (regardless of discouraging jurisprudence)as is so fashionable!
Khosi, is right that if you are not in the special books of PdV you will not be spared even when grounds prevail. As for the interpretation it is a good piece but there re avenues to contest the content of the report.
I think Pikoli did not tell all except for crocodile tears, he must have been asked about his docility regarding expediting the incarceration of Zuma and he acted like and independent lawyer. He must have been told leave comrade Selebi and he was adamant to arrest and prosecute. During that special trip with Mbeki drinks were shared and discussions ensued about recharging Zuma. Anyway, the court need evidence not suppositions as it is tendenct of Prof to suggest without evidence. I do not have evidence. I am raising conspiratorial theories!
It is Saturday, I have to go attend the NEC meeting of the ANCYL. I will advise Malema accordingly and ask him to greet the Blog! Some drinking is not illegal!
Ishmael Malale // Dec 6, 2008 at 6:53 am
Pierre de Vos was not interpreting the NPA Act, he actual inserted a line that does not exist in the act nor the constitution. That cannot be correct. Otherwise anyone can enter a line into any of our laws, just because its suits their argument.
The current dispute between khosi and PdV turns on an unfortunate turn of phrase in the article:-
“this suspension must be linked to a reasonable belief by the President that an inquiry could find that the NDPP is not fit and proper to hold office.”
This falls into two errors: [A] that the President must establish an independent Inquiry, and [B] that he must second-guess the outcome of any such Inquiry.
Received wisdom is that the President may provisionally suspend [NDPP] from office if he (or she) has reasonable grounds for suspecting that one of the four grounds stipulated under s.12 (6)(a) obtains. That suffices, even though the sub-section does not say as much.
***
PdV shows this is what he really means when he elsewhere writes about the President:-
“having a reasonable suspicion that one of the grounds set out in section 12(6) exists” // Dec 5, 2008 @7.15 pm
Now ponder this:- the section says the President may provisionally suspend [the NDPP] pending such enquiry [into his or her fitness to hold such office] as the President deems fit.
If the President removes the NDPP from office, he is obliged to inform Parliament of his reasons [sub-section (6)(b)], but the statute nowhere obliges him to publish the results of the enquiry or present it to Parliament (which has the final say on the removal of the NDPP).
Such an enquiry is merely an investigative tool for the President.
Is anyone noticing the difference between an “enquiry” and an “inquiry”?
Compare section 84 (2)f. of the Constitution on presidential commissions of inquiry; cf. the provisions of ss. 7(4)(a)(v), 28, 29, 30(1)(c), 31 of the NPA Act on inquiries; etc.
@dontgetmestarted:
What does this difference imply? Do the acts really state “enquiry” and “inquiry” on different occasions?
(I mistakenly typed “enquiry” yesterday, I meant “inquiry”.)
Dear Garg,
Yes. the only place in the NPA Act where the word “enquiry” is used is at s.12(6)(a). It is neutral, necessitating no formal investigation. To “enquire” is to ask questions.
“Inquiry” occurs at many places in the NPA Act, and in numerous other statutes, all relating to formal investigations.
The Terms of Reference for Ginwala are meticulous in calling it an “Enquiry” in terms of s.12(6)(a) of the NPA Act.
It is not formally a Presidential Commission of Inquiry under s.84(2)f. of the Constitution, as many people seem to think – misled, perhaps, by sloppy media reporting.
The M&G report quoted from by PdV, for example, burbles happily about “Ginwala and her panel”. There is no “panel” of assessors that I am aware of.
Thanks for the reply.
Am I then right to assume that we have only had enquiries, but there has been no formal inquiry into the arms deal or into the events surrounding the suspension of Pikoli?
M&G seems to imply that the Ginwala Commission was an inquiry:
Instead, the report says justice department boss Menzi Simelane misled former justice minister Brigitte Mabandla and withheld information from her and the inquiry.
In 2000, the Parliamentary Standing Committee on Public Accounts ordered investigations into the strategic defence package. The resulting draft reports were later fused into the JIT Final Report. It wasn’t a “commission of inquiry” because Parliament doesn’t operate in that way.
On my limited reading of it, media reportage (including M&G’s) into the Pikoli affair has assumed Ginwala headed a formal presidential commission of inquiry [under s.84(2)f. of the Constitution].
I accept that, in practice, Ginwala’s operated very like a formal presidential commission of inquiry; but it was actually established as an “enquiry in terms of section 12(6)(a) of the [NPA Act].”
It wasn’t necessary to structure it so formally, however, because the NPA Act leaves it to the President to decide how to progress his “enquiry”. Compare the very different arrangements under s. 8 of the National Police Services Act for removing the National Police Commissioner (a topic on which PdV has blogged previously).
***
The M&G front-page report under the splash headline “Ginwala absolved Mbeki” includes this:-
“President Motlanthe gave the report to his legal advisers and later to Pikoli, who, in an unusual move, was asked to make submissions on Ginwala’s findings.”
There is nothing unusual about it. In fact, if the President decides to remove Pikoli he is obliged to give him an opportunity to make representations which must be submitted to Parliament together with the President’s reasons for removing him from office: s.12(6)(b) of the NPA Act.
My understanding is also that the M&G article(s) implies that the Ginwala Commission constitutes an inquiry.
Oh dear oh dear. Firstly, YES Pikoli should be reinstated.
Secondly, whilst we are all debating inquiry, enquiry, tomato, tamato, Pierre’s point re the independence of the NDPP from the Executive is getting lost along the way. The President must have an objective inquiry which conforms with the law of Natural Justice in order that any removal of the NDPP cannot be done for reasons which suit the President (hell, let’s say for example that the National Police Commissioner or the former Deputy President were facing charges brought by a pesky NDPP) but is removed only when it is in the National interest to do so, and within the terms of the prevailing legislation. This is of course completely contrasted by the position of Ministers, Deputy Ministers and even Deputy Presidents who ARE appointed personally by the President and so can be sacked any time he feels like it.
Therefore Pierre’s position is absolutely correct and Khosi/Mbeki needs to just accept that even his buddy Ginwala had nothing on Pikoli. Because let’s be in no doubt, were it NOT for the provisions requiring a disciplinary type Hearing/Enquiry/Inquiry, Khosi/Mbeki would have relieved more than just JZ of his responsibilities.
This is the precise point . . there is nothing in the legislation that calls for “an objective inquiry which conforms with the law of Natural Justice [and ensures] that any removal of the NDPP cannot be done for reasons which suit the President . . but is removed only when it is in the National interest to do so.”
Any old “enquiry” will do.
It is the interposition of Parliament which is intended to secure against arbitrary removal by the President.
My gripe with the article is the snide remark where PdV speculated that if the inquiry did not vindicate the former President’s action:-
“. . . it would suggest that [TM] was wrong to believe (if he ever did believe) that Pikoli’s actions made him not a fit and proper person to hold office.”
“Actions” is far too restrictive, but let that pass. What on earth is the point of the parenthetical hypothesis? The “inquiry” – still less “enquiry” – does not sit in judgment on the adequacy of the president’s thought processes or on the sincerity of his beliefs.
***
As for PdV’s belief verging on monomania that TM is irredeemably mendacious, that tragic personage might soon have the comfort of being exonerated on one major count on which the court of public opinion rushed to judgment long ago and for which PdV has been freely excoriating him for over a year:-
PdV:-“Apparently the report finds that Mbeki did not interfere in the arrest and prosecution of police National Commissioner Jackie Selebi.”
Heark! Is that the sound of one wheel falling off the anti-TM bandwagon that PdV has been riding on?
dontgetmestarted:
If there is a difference between “enquiry” and “inquiry”, my trusty Concise Oxford hasn’t heard of it. However, you seem to suggest that “inquiry” is something far more profound – nay, hallowed – than the poor simple “enquiry” could ever hope to be. “Inquiry”, it would appear, is intended solely for use by great legal minds, whereas “enquiry” refers to questions asked by Other People, i.e. the proletariat. I may be on the wrong track here – even the Gargster seems a little confused – and would be happy if you could shed a little more light.
DGMS (or SLW) – can’t see why you’re so exited by TM’s exonoration by Frene. Hardly meets the free of fear or favour requirement now does it?
Might as well subject TM to an enquiry by Khosi, or Zuma by Lindelani…
Mpho // Dec 7, 2008 at 5:12 pm
Time and time again I told you, Pierre, Rat and the ilk that you are wrong to say Pikoli was suspended to protect Selebi. And I have always based my argument on the fact that none of you has the evidence to that effect. I also told you that Pikoli was lax on issues of security, but you people chose to close rank around a fellow attorney. You even told us how great a man he was to work with.
Now that Ginwala has laid bare your lack of reason, you and Pierre are now saying the rules should have been different to what the law say they should be. That’s absurd.
I will give you and your ilk, one piece of advice. The only way to have a chance of beating TM is if you take him to the court of public opinion. And this is simple because he does not play to the gallery. He would rather give the masses a painful truth than deceive them into liking him. Even in the court of public opinion, he would defeat you over time because lies told in appeasement have a shorter lifespan than that of the truth.
And time, has simple, caught up with anyone who was peddling the lie of a Selebi protection.
Ginwala conducted an enquiry, and not “an objective inquiry which conforms with the law of Natural Justice”. Meaning the enquiry does not really exonerate anybody from anything, except perhaps for Pikoli.
If Pikoli is exonerated and Mbeki suspended him, then why was he suspended? It does raise a question mark and seems like political meddling.
I have returned from the NEC meeting and have advised Malema that he must not be harsh. Pikoli must publish his reasons so that we can pry into his thinking regarding reinstatement.
I think there is a basis for releasing him. Motlante must decide. We are inching
Firstly, Khosi, tell me when was your mate Ginwala’s terms of reference expanded to include her having to exornerate you from a potential criminal charge? Or has she been moulding her inquiry into just such a thing herself post the Nicholson J ruling?
Khosi/Mbeki, there is not a person alive who expected Ginwala to have a bad word to say about Mbeki/you. But what should surprise you, especially in light of your assertion time and time again that Pikoli’s use of certain investigators rendered him unfit for his post, was that even old Ginwala didn’t think that was fatal to his continuing employment as NDPP.
And Dontgetmestarted, last time I checked, our legal order was based on a little document known as the Constitution, which usurps legislation. So actually, the President does have to afford a fair hearing to any NDPP he’d like to get rid of.
Ishmael! Shocking name dropper you!
My mind has now hardened on the correct interpretation of the provisions of section 12 of the NPA Act. PdV’s analysis is flawed.
(1) We begin with a reasonable suspicion by the President that one of the four stipulated grounds obtains. There is no explicit requirement for this in the sub-section, but let us allow it in order to exclude arbitrary exercise of power.
(2) The President then suspends the office-holder pending “enquiry” into the matter. The form of the “enquiry” is entirely for the President. It need not be made by a third party. Nor is the President bound by the conclusions of the third party if any such is deputed to “enquire”. He can pick and choose among the findings. Certainly, the President is not obliged to second-guess the outcome.
(3) Following the “enquiry”, the President decides whether or not to remove the office-holder from office. If he decides on removal, he must give the office-holder an opportunity to make representations. At this stage we will allow (because it is implicit in the process) that he must have a reason for believing one or more of the stipulated grounds obtains.
(4) Having removed the office-holder, he conveys to Parliament (a) his decision, (b) the reason for it (note there is no obligation to furnish the written fruits, if any, of the “enquiry”), and (c) the representations (if any) made by the ex-office-holder.
(5) Parliament then enters into its own consideration of the matter according to its own proper forms and procedures. Unless it resolves against the decision of the President, the removal stands. This last is the statutory safeguard against arbitrary removal of the office-holder.
Mpho
It was Pikoli, himself, who made this accusation at the hearings. Had he not done so, Ginwala would have had no reason to pronounce on the matter.
I hate it when Africans fail to think. Such actions are quite conforming. Africans, please lets think.
Dear Mpho,
Just because PdV dedicates much of his journalistic output to attacking TM’s bona fides does not mean his readers should supinely accept his version of events, or concede that he is graced with insight into TM’s motives.
Seemingly, Ginwala “[found] no proof of political interference by Mbeki in the Selebi case”. Even before publication of her findings, aspersions are casts on her sincerity and competence, taking us all back to “Go!”.
If this is the prevailing dialectic, it is pointless examining anything and we should just capitulate to what “thousands” and “millions” of media articles tell us is so.
It is this which constitutes a serious threat to democracy, and not what PdV rashly dubbed a stance “anti-ethical [did he mean “antithetical” maybe?] to robust debate in a democracy”. See PdV// Dec 5, 2008 @6.53 pm under “Don’t Hold Your Breath”, where he also objected against me:- “your approach is extremely dangerous for a democracy and would seriously hamper public debate and news reporting of power abuse.”
When and how is public debate hampered by a search for the truth? Since when was responsible journalism built on tendentious reporting and the publication of reckless conclusions drawn from a partial (in more senses than one) survey of the evidence? All we did was call for evidence supporting over-bold allegations.
On “power-abuse”, over the last few days the impartial observer will have come to doubt the received wisdom of the chattering classes that TM (a) “of course doctored [the JIT Report]”, and (b) interfered in the arrest and prosecution of Selebi.
Maybe we can now proceed in less disorderly fashion.
News 24 this morning:
Johannesburg – Former president Thabo Mbeki has again denied any knowledge of any wrongdoing by National Police Commissioner Jackie Selebi, The Star reported on Monday.
He said he found analysis about the report into suspended prosecutions boss Vusi Pikoli very frustrating.
Pikoli was suspended last year on the grounds of a breakdown in the relationship between himself and the justice ministry. An inquiry was subsequently held into his fitness to hold office and, although the report had not been made public yet, there had been media reports about its content.
Pikoli maintained he was suspended because he planned to arrest Selebi for alleged corruption.
Mbeki said he remained convinced that no proper evidence of wrongdoing had been brought to him about Selebi when he was in office, and that full co-operation had been given to the investigators. He said he expected to be vindicated. – News 24
“As long as people think that the government is supposed to take care of them and protect them and that they can trust their politicians – as long as they think that, they’re in deep trouble. And, in fact, we are all in deep trouble because of that kind of thinking.” – G. Edward Griffin
Ishmael, since when has Malema held an NEC post?
(Hey Khosi look I’m thinking!) I was just THINKING that as Zuma was charged under Pikoli’s watch, is it appropriate for the NEC to be discussing the reinstatement or otherwise of a NDPP who decided to charge at least one of their number? If Motlanthe is “guided” by such a body, then it is wrong, isn’t it?
And Dontgetmestarted, firstly I think you should stop ordering people around. That might be why you are being constantly labelled “pompus.”
Secondly, explain to me please, why would the NDPP be afforded less rights than the office cleaner when his or her employer wanted to sack them?
Mpho,
The president of the ANC Youth League is automatilly a member of the ANC NEC.
Khosi, find me his name:
http://www.anc.org.za/show.php?doc=lists/ancnec.html
I think you are getting your honorary NEC place mixed up with the ANC kiddie’s President.
I apologise. You are correct. He has an ex officio post.
Mpho
I think Ishmael was referring to the ANCYL NEC.
I hate to say it, but I told you so!
Pikoli has been relieved of his duties. The reason: NATIONAL SECURITY.
khosi // Dec 8, 2008 at 12:20 pm
………………………………………………….
How was National Security a reason to dismiss Pikoli?
Sne // Dec 8, 2008 at 12:25 pm
President Motlanthe said so! It is what I have always maintained. Please get yourself a copy of his announcement. He explained there.
khosi // Dec 8, 2008 at 12:20 pm
Why do you say you hate to say it? You must be delighted that once again you’ve been vindicated.
Can you quote your source for the reason given.
khosi // Dec 8, 2008 at 12:28 pm
Where does one get a copy of this announcement? The only news items I have tracked down say that Motlanthe said:
“I have come to the determination that advocate Pikoli should be relieved of his responsibility as the country’s national director of public prosecutions.”
The M&G article also states that
“Matters that arose during the inquiry included a submission that Pikoli posed a national security threat.” But this statement is not attributed to the President – it is just a comment by the journalist.
khosi // Dec 8, 2008 at 12:28 pm
…………………………………………………..
The address you refer to does not state HOW National Security was endangered or compromised. Can you answer the ‘how’ part?
sarah palin // Dec 8, 2008 at 12:56 pm
……………………………………………………………
Get it here Sarie…
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=112138&sn=Detail
sarah
http://www.info.gov.za/speeches/2008/08120812451005.htm
Pikoli jus fired by Pres:
President fires Pikoli
08/12/2008 12:19 – (SA)
Want to know more?
Answerit can help.
Selebi: Mbeki denies wrongdoing
Motlanthe studying Pikoli report
Pikoli speaks about corruption
Pikoli report to be made public
Pikoli receives Ginwala report
Release Pikoli report – FXI
Pikoli decision up to president
Pretoria – President Kgalema Motlanthe has decided against keeping Vusi Pikoli on as National Director of Public Prosecutions.
“I have come to the determination that advocate Pikoli should be relieved of his responsibility as the country’s national director of public prosecutions,” Motlanthe said at the Union Buildings in Pretoria.
Motlanthe said Pikoli’s professional competence was not in question.
“However it should be noted that the requisite skills would necessarily include professional competence as well as those outlined by the inquiry, in particular appreciation for, and sensitivity to, matters of national security.”
This comes after the release of the Ginwala Inquiry report.
Rather hard to comment without sight of the full report, but it strikes me that the issue of national security is a red herring – a convenient argument to get rid of him. I have yet to read anything which explains how Pikoli jeopardised national security? Can anyone help?
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. Some examples of these lies include the following:
1. His detractors claimed he was an autocrat, yet an “independent” NEC member, Pallo Jordan, (much loved by liberals and the press for his assumed opposition to Thabo Mbeki) has confirmed that Thabo Mbeki was many times opposed by the NEC for his policy propositions and yet deferred, democratically, to the prevailing view (strange behavior for an autocrat).
2. His detractors (including Pierre de Vos) claimed that he suspended Pikoli in order to shamelessly protect Selebi, yet the Ginwala report (after careful examination of the facts, with the help of senior independent counsel) apparently exonerates Thabo Mbeki.
3. He was accused of desperately clinging to power yet, in-spite of the executive power he could have used to bargain a more beneficial exit, he relinquished power without a murmur and has since not even partaken in any political processes.
4. Lies are peddled by Tsvangarai about Thabo Mbeki’s actions in Zimbabwe, yet when the actual facts are raised, in a formal letter, by Thabo Mbeki, outlining the actual course of events and the MDC’s acquiescence in the mediation process (as opposed to its public posturing), the MDC fails to contradict these facts (as lies, therefore confirming the truth thereof). Pierre de Vos, the media and their fellow-travelers choose rather to further criticize Mbeki rather than question the contradictory actions of Tsvangarai and their meaning (as to his basic honesty).
5. The least stated about the accusations of conspiracies, etc, the better.
Fact of the matter is that Pierre de Vos et alles allowed media reports to influence their views about the nature of Thabo Mbeki. Basic tenants of fairness and natural justice were ignored in interpreting anything done by Thabo Mbeki, in fact the worst that could be hypothised had to be true because he could not be anything but a michaevilian, autocratic villain with the temerity (a result of native ignorant stubbornness) to question accepted liberalist dogmas! How dare he not respect as TRUTH the mantras produced in the hallowed halls of academia and the progressive eating rooms of liberal South Africa!
Fact of the matter is that those of us who have full respect for the truth, as gleaned from FACTS, always could see easily the lies that were being peddled about Thabo Mbeki. It is therefore no surprise when he is exonerated in regard to the Ginwala matter (as it will not be a surprise to us when he is exonerated in regard to the Nicholson matter). Facts Pierre, FACTS, FACTS AND MORE FACTS, not baseless speculation fueled by some inexplicable discontent!
Yet:
The form of the “enquiry” is entirely for the President. It need not be made by a third party. Nor is the President bound by the conclusions of the third party if any such is deputed to “enquire”. He can pick and choose among the findings. Certainly, the President is not obliged to second-guess the outcome.
So naturally, an enquiry in the shape and form stipulated by the president would not find any wrongdoing on the part of the president who commissioned such an enquiry.
Also note that president Motlanthe refers to the Ginwala Commission as an ínquiry, not an enquiry. This is not sloppy journalism on behalf of M&G, it’s a direct quote:
“However, it should be noted that the requisite skills would necessarily include professional competence as well as those outlined by the inquiry, in particular appreciation for and sensitivity to matters of national security.” (President Motlanthe)
I’m not convinced that Mbeki did not know that Selebi was allegedly a crook. Again, if Pikoli did nothing wrong, then why was he suspended? Now the president claims it is in the interest of national security not to reinstate Pikoli.
All this points to the fact that Pikoli did his job too well and prosecuted powerful, connected politicians. For this he gets suspended? Free from fear and favour? More like all are equal and some are more equal.
spoiler // Dec 8, 2008 at 1:18 pm
Herewith copy of the report:
http://www.info.gov.za/view/DownloadFileAction?id=93423
Khosi – “President Motlanthe said so! It is what I have always maintained. Please get yourself a copy of his announcement. He explained there.”
Same ol’ argument (or lack thereof) you’ve always had – because someone with the stature of President of the RSA said so, it is so.
Vuyo // Dec 8, 2008 at 1:38 pm
Pierre has no ability, whatsoever, to deliver fact. The best that you will get out of him is the preponderance of probabilities. Asking for more will, without fail, lead to a disappointment.
Pierre uses his blog to peddle idealistic opportunism that is rooted on Helen Suzman ‘guide on how to deal with natives’. The is no honesty in much of what he says on Thabo Mbeki. No truth, absolutely none.
All the lies that people tell about TM are unravelling one by one. Whether its him plotting against comrades, or him protecting friends by use of state power, or him being a dictator, or him being liable for Zimbabwe’s problem etc, all lies crumbling.
Anonymouse // Dec 8, 2008 at 1:59 pm
It is very sad that you contribute something that mute, on your first contribution after a while.
But ke, of all people, you are the most versed of my ‘NATIONAL SECURITY’ argument. So I need not say more to you on that score
I feel you Vuyo. I have always asked people to come with FACTS and proof of all these allegations but all we are ever provided with is a Mail & Guardian report or some other unreliable sources.
Khosi,
I am waiting for you to tell me HOW Pikoli compromised National Security? Spoiler has now joined me in asking ‘how’!
Garg Unzola
Actually the president used “enquiry” in all the 13 odd places where he used it. Don’t know why the M&G didn’t just copy it from the presidency’s website, maybe they first got hold of a typed one?
http://www.thepresidency.gov.za/show.asp?type=sp&include=president/sp/2008/sp12081221.htm&ID=1843
What the exact relevance of enquiry and inquiry is, I leave to the legal eagles.
Sne // Dec 8, 2008 at 2:16 pm
I have explained my point of view on the matter, so many times, that I am numb just thinking about explaining it again. That said, it does not matter what my explanation is, anymore, as I believe that there is a more credible explanation, from the report, that is now doing rounds. Please get your explanation from there.
If I can step in here for khosi.
For those who cannot comprehend the relevance of security issues here, try NPA s.19B. One problem was the Scorpions’ use of external contractors, and the NDPP’s failure to ensure they had proper security clearance. This sensitive issue was already covered in the Khampepe Report in 2006 (see at p.149, for example) so Pikoli had no excuse for being lax on it – as Ginwala apparently found he was.
The problem for people who cannot or will not work things out for themselves (even when all the materials are to hand) is that they are prisoners of the views of other people.
It is why “millions of newspaper articles” and “thousands of [website] links” add up to precisely nothing unless there are facts behind the stories.
Don’t sit around waiting for things to be processed to you. Do the work yourself if you are a lawyer, and go to the primary sources.
As for those with no time or skills to process complex documents, it is not asking too much of you, surely, to be careful to notice what are second-hand unsubstantiated assertions as to the truth [e.g., “of course TM doctored the report”]. We are not children.
Thank you Dontgetmestarted,
I will now read the relevant Report and formulate my views on it.
Khosi,
You have dismally failed to tell me where you got the HOW part of the compromise of National Security. You should thank DGMS for helping you out! You were referring me to “the report, that is now doing rounds…” and asking me to please get my explanation there. I repeat to you that the Report you are referring me to does not address the HOW part. It simply alleges without stating ‘how’.
Sne // Dec 8, 2008 at 3:17 pm
I hope that is not belligerence that I am sensing from you. Truth is, I am really tired of explaining why Pikoli’s actions were careless on matters of national security.
Please ask Mouse, Mpho, Mqo, Pierre, Wessel, Clara if you want to verify what I am saying to you.
Sorry for not being much of help. But ke, I think you have you explanation now, or part of it.
Any links to the Ginwala report online yet?
z // Dec 8, 2008 at 2:47 pm
Read the whole tread and you will see. Pay particular attention to what dontgetmestarted has to say.
Good to have you back.
Khosi (and dontgetmestarted) – you have not answered Sne. And, Khosi, all you ever said about national security when we last debated the issue (some months back) was, because TM Mbeki said that it would be contrary to national security if the prosecution of Selebi was allowed to continue in the way Pikoli wanted it to, it was against national security and the President needed not disclose how national security wopould be infringed.
dontgetmestarted – although you are now for the first time mentioning how national security (and Pikoli’s carelessness in this regard) might have played a role in Mothlanthe deciding to dismiss Pikoli on a final basis, one must firstly bear in mind that the national security thing was never part of the mandate of the Ginwala Commission at the outset. The thing which brought the Commission into life was the broken down relationship between Pikoli and Mbandla, more or less hot on the heels of Mbeki having expressed his (and Mbandla, her) dissatisfaction with what is happening in the Selebi case. Mbeki never testified. Neither did Mbandla. The whole thing had therefore been hanging in the air so to speak.
Dear Sne,
The Khampepe Report is available online, but Ginwala’s is not yet published, and may never be – the President isn’t obliged to publish it. Ginwala’s terms of reference are also online on the gcis website.
The M&G article published what appear to be findings as to Pikoli’s security lapses, and the President’s statement of today (I gave the link already) certainly places great stress on the national security aspect. read NPA, s.19B and you will see clearer.
DGMS and Khosi,
Section 19B continually refers to this phrase;
…”that a person could be a security risk or could possibly act in any manner prejudicial to the objectives of the Directorate of Special Operations.”
Just out of curiosity; did you guys, including Kampepe, interprete that phrase in the amendment to the NPA Act to include national ‘security risk’ or is there a specific referrence to National Security that I am not aware of?
Dear Anonymouse,
Why should I have mentioned national security before?
And you are wrong as to Ginwala’s terms of reference, I quote from the media release dated 3 October 2007 available on the gcis website to which I referred Sne (without giving the link, because I suspect that will trigger a reference to the moderator):-
” 2. ISSUES TO BE DETERMINED BY THE ENQUIRY
“The issues to be determined by the enquiry are:
“2.1 The fitness of Advocate V Pikoli, to hold the office of National Director. In particular:
“2.1 .1 Whether he, in exercising his discretion to prosecute offenders, had sufficient regard to the nature and extent of the threat posed by organised crime to the national security of the Republic.
“2.1.2 Whether he, in taking decisions to grant immunity from prosecution to or enter into plea bargaining arrangements with persons who are allegedly involved in illegal activities which constitute organised crime, as contemplated in the Act, took due regard to the public interest and the national security interests of the Republic, as contemplated in section 198 of the Constitution, as well as the Prosecution Policy.
“2.2 Whether the relationship between the National Director and the Minister has irretrievably broken down. In particular,
“2.2.1 Whether he failed to appreciate the nature and extent of the Constitutional and legal oversight powers of the Minister over the prosecuting authority;
“and such other matters as may relate to the fitness and propriety of the National Director to hold office.”
***
I don’t dispute that the explanation TM initially gave for suspending Pikoli was solely the breakdown in the relationship between him and Mabandla.
This merely serves to corroborate what Mouse has said above & it was taken from the iol website;
President Thabo Mbeki has suspended the National Director of Public Prosecutions (NDPP) Vusi Pikoli, the GCIS said on Monday.
“This decision was taken on the basis of an irretrievable break down in the working relationship between the Minister of Justice and Constitutional Development and the NDPP,” said Government Communications and Information System’s spokesperson Themba Maseko. (24 September 2007)
Ishmael!
I understand you were attending one of your regular NEC meetings of the ANCYL. Certainly you had to discuss the report,it being in the possession of the president. It follows wothout any doubt that you had a look into that report and deliberated upon it of which is only fair as there are political implications so far as is concerned.
why this dilly-dallying in releasing that report. Is it a case of saying that the contents of same are not what you( ANC ) structures expected?
You surely can save us from this unprecedented assumptions/guessings/pre-emptions but finally having you guys dissecting something which may not necessarily be authentic. I guess you realise that this is an issue of national interest and must be treated as such.
Care to advise on the position of the ANCYL,s league towards the report, most particularly on what will be the fate of Pikoli?
Dear Sne,
If that is not a joke @3.38pm, it is remarkably silly.
Ask yourself (rather than Judge Khampepe – not “Kampepe”, btw) why would the National Intelligence Agency established by section 3 of the Intelligence Service Act be dragged into the picture under s.19B (1)(a) to give a “security screening” if it was not “national security” that was in issue?
Anonymouse // Dec 8, 2008 at 3:32 pm
That is not all I said. But what is done is done. The main reason for my argument has prevailed as the knell for Pikoli.
And I will not be laboring on a point that has been decided. Thing is Rat, it is pointless to fight about it now. I was right, you were wrong and that’s that.
Sne et al…the report is on the Business Day website.
dontgetmestarted – thanks for the info about the Commission’s terms of reference – which was never disclosed here before.
khosi – “I was right, you were wrong and that’s that.” Well, we’ll just have to see about that. Court action against TM and/or KM is still a possibility.
dontgetmestarted // Dec 8, 2008 at 3:55 pm
……………………………………………………………………
I asked myself that but then again I realised that the NIA is better equipped to screen anyone than any other agency in South Africa. Now, would you give another reason as this one of yours is so obvious that it could be disputed that it was the intended one?
Mzo,
Thanks I have seen the Report but I cannot save it for my later use. Is there any other site that I can visit to download and save it?
Listen, people are going around the circle here. It does not matter whether national security was part of the reasoning for the suspension. Motlanthe made it clear that in its recommendation, to re-instate Pikoli, the Ginwala report did not consider issues of national security. But he said he could not ignore what he found the report said on the issue of national security. And Motlanthe said this clearly, when he made the announcement.
So what was is neither here nor there. What is, is a report that found Pikoli fit and proper to do his work according to the terms of the inquiry. But the same report also found him lacking on national security issues. And Motlanthe seems to have taken issue to that.
Anonymouse // Dec 8, 2008 at 4:07 pm
What do the initials KM stand for?
@Z:
Thanks, the M&G articles state ‘inquiry’. My understanding is that the difference is an enquiry is an informal, mostly internal investigation, while an inquiry is a big official affair external affair.
If we had an enquiry, it means that TM could have easily doctored any reports any which way he liked it, because it’s only an internal thing. If we had an inquiry, then TM could not have doctored the reports that easily.
When I connect the dots, it just seems like TM had a motive to doctor the reports. He did not want to seem like he protected Selebi, while many of his officials have claimed that they did inform TM of the state of Selebi’s dealings with Aglioti, Kebble and others.
You gotta love the way Mbeki does his things. Some actions have his name written all over them,yet you cant prove them. The man is pure evil.
Khosi – “What do the initials KM stand for?”
Kgalema Motlanthe (or rather, COMRADE Kgalema Motlanthe) of course!
Stalin – Now you will have Khosi coming after you. FOH SHO bro!
Mondli makhanya actually called Mbeki EUIL. I have to wonder what Zuma does to make turn around in his favour. Bulelani ngcuka seemed to have sealed Zuma’s fate by the infamous pronouncement,why the slander and not charge zuma with Shaik then? Mbeki sealed Pikolis fate with a dubious suspension which has worked fantastically for Zuma. How else could the polokwane leaders have gotten rid of Pikoli without a public outcry. I believe Pikoli could have been the man to bring umsholozi down
It hurts me down to the core when people who ensure that we live our lives are referred to as evil. Thabo Mbeki is no evil, he just has a beautiful mind.
Would it have been better for “national security” not to prosecute Selebi? Is “national security” not just an excuse to fire Pikoli for the obvious reasons, namely to instal in his place someone more amenable to the ANC’s aim to get out of prosecuting Jacob Zuma? And has “national security” been compromised in any way due to Pikoli’s actions? Pah! For “national security”, read “ANC security”.
Cara – You’re right – as always.
Sorry – for Cara, read Clara
Clara:
That makes more sense to me than anything else.
Clara // Dec 8, 2008 at 7:54 pm
………………………………………………..
What you are saying “is right, it aint gonna get no righter!”
Dear Clara,
I have just now, for the first time, seen yours of // Dec 7, 2008 @6.34 pm. regarding “inquiry”/”enquiry”.
Indeed, the Concise makes it appear to be only a matter of spelling. But if you went into a building housing various Courts of Law and in the foyer saw one door giving access to “Inquiries” and another to “Enquiries” you would be well advised to knock at the latter if you needed directions to the cafeteria.
However that may be, at paras. 12 to 22 of her Report Dr. Ginwala gives an extended explanation of the difference between her “enquiry” and what PdV persists in calling a “Commission of Inquiry”. She had no powers to compel evidence on subpoena, for instance.
Certainly, the “enquiry” under s.12(6)(a) of the NPA Act is without precedent. PdV, as a legal commentator, ought not to have fallen into the same trap as the media.
Had the M&G bothered to refer to s.12(6)(b) they would not have been any surprise that the President had called for representations from Pikoli. The fact that he did so was the best possible indication he was minded to remove him from office.
I hope that assists.