After re-reading Frene Ginwala’s report, it is quite clear to me that in her haste to protect the then Minister of Justice and the then President, she wrote a report riddled with inconsistencies and contradictions. The President then decided to fire Pikoli and in doing so, may have misconstrued his powers in terms of the NPA Act. He might well have acted ultra vires in doing so and Pikoli’s lawyers will have at least an even chance of winning a case if they wished to challenge this decision in court.
First, let us turn to dear Frene Ginwala – presumably like the then Minister and President, a disciplined member of the ANC – and her “Report”. This is of course not an independent Report, but a Report prepared by an ANC cadre. Remember, it was reported that Ms Ginwala travelled with Brigitte Mabandla on a flight from Cape Town to Johannesburg on 20 September 2007, two days after the Minister sent the illegal instruction to Vusi Pikoli to stop the arrest of Jackie Selebi. When asked about this in Parliament, the then Minister said she could not remember whether she had traveled with Ginwala, and she declined to answer a question about whether she had met with Ginwala in the days before or after this event.
She also declined to subject herself to cross examination before the Enquiry, which suggests that she knew her testimony would not stand up to scrutiny and that she would be pulled to threads under cross examination. Either Mabandla has a memory like a sieve (which is possible as it is rumoured that she is often tired and emotional), or she was lying through her teeth.
In any case, even Ginwala could not help but find at various stages of the Report that Vusi Pikoli’s had “impressed me as a person of unimpeachable integrity”; “impressed me as a man of unquestionable integrity, with passion to execute his constitutional responsibilities without fear, favour or prejudice”, and “impressed me as a person of unimpeachable integrity and credibility”. Yet she found at the same time that had facts about Pikoli’s refusal to accede to the President’s request not to arrest Selebi “been presented as the reason for the suspension, when the conduct would have held a real risk of undermining national security, I would not have hesitated to find the reason to be legitimate.”
Section 12(6) of the NPA Act makes clear that the NDPP can only be removed on stipulated grounds, including that he was no longer a “fit and proper person”. As Ginwala concedes, when deciding whether the NDPP is “fit and proper”, section 9 of that same Act stipulates that due regard should be given to his or her “experience, conscientiousness and integrity”.
But strangely, while she found that the NDPP was conscientious and had integrity, she also seemed to find that he was “not fit and proper” to hold office because he refused to obsequiously adhere to the President’s dubious request not to arrest Selebi for at least two weeks for “national security” reasons. (In the event, Selebi was arrested later - by mere accident (?!) only after the Polokwane conference – and national security did not seem to suffer at all.) There was also no evidence given to the Enquiry that Pikoli’s actions actually threatened national security in any way. So let me get this straight: although possessing the qualities that makes a person fit and proper, he was not fit and proper because he refused to obey the President’s “request” not to arrest Selebi because maybe, just maybe, national security might have been threatened. Go figure.
Ginwala also found that Pikoli was not suspended because the government wanted to stop the prosecution of Selebi. Yet she found that the Minister had signed a letter instructing Pikoli not to arrest Selebi and that this instruction was illegal and may have constituted a criminal offense. She also found that the President requested Pikoli not to immediately arrest Selebi and then suspended Pikoli when he refused to give the President more than a week before arresting the Police Commissioner. The suspension occurred a day before the arrest of Selebi would have been effected by Pikoli.
The government then provided several bogus reasons for the suspension and proposed dismissal – all rejected by Ginwala as invalid reason for Pikoli’s dismissal – and studiously avoided mentioning Pikoli’s decision to arrest Selebi as a possible reason for his suspension and possible dismissal. Yet Ginwala herself then found that because Pikoli had the cheek to assert his independence when requested not to proceed with the arrest of Selebi, he had failed in his duties and might therefore not be a fit and proper person.
She even suggested that Selebi did not have a right to present the President with the fait accompli, namely that he would arrest Selebi and that he was required first to inform the Minister and the President before getting the warrant for Selebi’s arrest and then had a duty to obey any request by the President not to arrest the Police Commissioner until such time as the President had taken the steps he might have claimed he deemed necessary to save us all from the national security catastrophe that would ensue. This does not seem to square with her earlier finding that the executive could not interfere with operational decisions of the NDPP.
These contradictions can only be wiggled out of if one makes the semantic argument – as Ginwala might well do – that government did not want to stop the (eventual) prosecution of Selebi – but merely the arrest of Selebi before the Polokwane conference or for some other vague reason regarding national security or the need to inform the tooth fairy. Ginwala is rather silent on this obvious point.
The Report also suggests that, when the President asked Mr Pikoli to suspend the execution of the warrants for two weeks, Pikoli should blindly have agreed to do so without question. But the President did not motivate his request for two weeks in any way and when Pikoli suggested one week instead, the President did not engage with him on the adequacy of his suggestion. As Pikoli’s lawyers point out:
[The President] did not say that a week would not be enough. The impression he created was that he would have preferred two weeks but that a week would do. There is no reason to believe that the President was overly concerned about the matter. … When the Minister asked Mr Pikoli to resign on Sunday afternoon 23 September 2007, she did not suggest that it had anything to do with his failure to allow the President more time to create an enabling environment. She would have done so if it was a real concern at the time.
When the President suspended Mr Pikoli, he did not say or suggest in their meeting or in his letter of suspension that it had anything to do with Mr Pikoli’s failure to accommodate the need for an enabling environment. He would have done so if it was a real complaint at the time.
Government never raised this complaint in their public statements after Mr Pikoli’s suspension, in their founding statement in the enquiry, in their supporting affidavits or even in their affidavits in reply. The DG in the Presidency filed two affidavits but neither of them suggested any unhappiness about Mr Pikoli’s reluctance to delay the execution of the warrants for more than a week.
In other words, Ginwala “invented” this reason to make a finding adverse to Pikoli without this ever having been raised by the Minister, the President or anyone else in their respective offices and without this having been given as a possible reason for his suspension. There is of course a very good reason why these people never mentioned Pikoli’s refusal to stop the arrest of Selebi, namely such an admission would have been tantamount to an admission that Pikoli was suspended because he had refused to stop the arrest of Selebi. Ginwala in effect finds that this would indeed have been a valid reason for the suspending Pikoli, yet she found that this was not at all the reason why the NDPP was suspended. Go figure.
Second turning to President Motlanthe’s announcement: The President stated that “it should be noted that the requisite skills would, necessarily, include professional competence as well as those outlined by the enquiry, in particular, appreciation for and sensitivity to matters of national security” and then found that based on these circumstances Pikoli was not a fit and proper person. Once again, no mention is made of the content of what constitutes a fit and proper person as set out in section 9 of the NPA Act. He fails to deal with the assertion made by Pikoli’s lawyers that:
None of the criticisms of Mr Pikoli come close to impugning his fitness to hold the office of NDPP. They reflect a mere difference of opinion between the enquiry and Mr Pikoli about the way in which he should perform his functions as NDPP. They do not reflect on his fitness for office at all.
But Jacob Zuma and the ANC needed to get rid of Pikoli so that a pliant NDPP can be appointed to ensure the case against Mr Zuma is never brought to court. Mark my words, unless Pikoli challenges and wins a case against the decision to fire him, the President is going to appoint a party hack to the position of NDPP and this party hack will decide not to pursue the case against Zuma.
NPA independence R.I.P.
Pierre
One or two places I think you interchanged Pikoli and Selebi:
“the President requested Selebi not to immediately arrest Selebi ”
“She even suggested that Selebi did not have a right to present the President ”
Not too serious, I’m sure most would read it correctly, but I thought you might want to changed it anyway.
Side note for the interested, COPE claims 428000 paid up members, there is breakdown per provinces and comparison with Dec 2007 ANC stats:
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71627?oid=112302&sn=Detail
Dear PdV,
Before the pack tumbles headlong down another rabbit-hole, and since you have now re-read Ginwala’s report, perhaps you would like to reconsider this:
Main article “National Security”:-
“It is also not clear that chapter 3 of the Constitution applies to an independent body like the NPA as this chapter deals with relations between the three spheres of government.”
In answer to a post of mine, you confirmed this was your view:-
“Chapter 3 is therefore about intergovernmental relations and your interpretation is not sound.” PdV // Dec 9, 2008 @9.45 am. This was larded with cross-reference to s.40 (which explains that government operates in 3 spheres).
I re-directed you to s.41(1)h. which you read too hastily, believing that the words of s. 40 somehow ousted the express terms of s.41(1).
I reminded you that s.41(1) deals not only with inter-action between the 3 spheres of government (inter-spherical, as I called it) but with inter-action among all organs of government (intra-spherical).
As I insisted to you (mine Dec 9, 2008 @10.53 and @12.45 pm), and as I now insist to Heidi (same thread, // Dec 9, 2008 @3.41 pm), this is not a question of interpretation (or of that objective/subjective mantra that often gets in the way), but of reading the provision.
I even quoted it for you in my first post @12.53 am (should be 00.53.am).
You are a professor of Constitutional law. On the text of the Constitution you are obliged to be accurate. I await your frank admission that your reading of s.41(1) is wrong.
Hi Pierre,
another error in the article “She also found that the President requested not to immediately arrest and then suspended him when he refused. This happened a day before the arrest of Selebi would have been effected.”
Nevertheless, I get the gist! Wonderful intepretation…my opinion…Kgalema’s reason are nothing but an execution of Luthuli’s instructions. To me Kgalema chose party over country, Zuma over me and you…his short presidency will forever be remembered for this bizzare finding, making a a further mess of a messed up situation he inherited…I wish Pikoli appeals to expose all this ANC lies and deceit!!!
I certainly do not see how my safety and South Africa’s was compromised by a decision to oust a mafia friend police commissioner!Bizzare!!!
Pierre, Pierre, Pierre,
It is amazing how you choose to infer the worst of those whom despise! So the President’s request is “dubious” while no such label attaches to Pikoli’s refusal to acquiesce? I think if we asked all 6 odd billion Earthians if they viewed as “dubious” a President’s request for an additional week in order for him to prepare for the arrest of the man in charge of the biggest number of armed dudes in the country, during a period of extreme conflict between senior members of the security services, the vast majority would concede that such conduct is NOT DUBIOUS! In fact, withholding such a request without providing reasonable grounds is dubious! What would Pikoli have lost by waiting an additional 10080 minutes? Pierre, please wake up from your Mbeki-hate-induced stupor and realize that the arrest of the country’s Police Head IS A NATIONAL SECURITY ISSUE!
I’m not really sure why everyone was so excited about Motlanthe to start with – he’s only ever been an ANC talking head – umshini wami in a suit.
I think we should just make a list of all independent organs and tick them of as they are systematically usurped. Even an independent commision of enquiry seems an impossibility. Zimbabwe, here we come.
DGMS: Answered your question under previous post.
Vuyo, Vuyo, Vuyo. I must admit that because of Mbeki’s words and deeds on HIV/AIDS, I do not have a very high regard of him. I am not a great fan of people who play with the lives of others – especially if those “others” are poor and vulnerable people. But I am trying my very, very best to see things from your point of view, but you see I am confronted by this rather perplexing set of questions, which you might be able to answer: If I agree with you that “national security” was at stake in the arrest of Selebi and that the President was really very concerned about “national security” if Selebi was arrested and furthermore agree with you that Mbeki decided honestly and validly to suspend Pikoli because of this genuine fear that national security was compromised, then something still bothers me. Why did the President, the Minister and the DG – armed with such very valid national security reasons – then lie about this “real” reason for Pikoli’s suspension when they suspended Pikoli? Why did they all deny that Pikoli’s suspension had ANYTHING to do with the Selebi matter? Why did they provide other reasons for his suspension – found to be bogus by Ginwala? Why did they continue to lie about what you say was a very valid reason for Pikoli’s suspension – even before the Enquiry? Why did the President or the Minister or the DG NEVER say that Pikoli was suspended because he had threatened national security by refusing to halt the arrest of Selebi until such time as the President had “prepared the groundwork”? Because the implication of your argument is that the President, the Minister and the DG had all lied and continued to lie about the real and valid reasons for Pikoli’s suspension and had trumped up other bogus charges to justify the suspension for which they actually had a very valid reason. If I continue to try and put myself in your shoes and try very hard to see that this issue of national security was really the important issue, I would want to have an answer for why these “lies” were deemed necessary. Otherwise I might surely be excused for being skeptical about the “national security” excuse because as lawyers who cross examine witnesses will tell you, witnesses often lie because they want to hide something. Sometimes what they want to hide is minor and sometimes it is something really important. In the absence of another plausible explanation, surely it would not be unreasonable to suspect that they did not mention what you and Frene consider the valid reasons for his suspension, because they were trying to hide something? What could they have been hiding? Any answers anyone?
Professor,
I think that you have the correct perspective on this issue. Thanks for a well-balanced post.
I agree with Good Charlie. The ANC was quick to learn from their erstwhile compadres in leading this poor state, the leaders under apartheid. When you need to justify something in the eyes of society, even the international society, just cry, “Domestic issue! Hands off”; or “National Security. Hands off!” And aaaall’s weeell!
Dear PdV,
Relative to my post here @4.10pm, I am picking up on your response posted under the previous thread // Dec 9, 2008 @4.05 pm where you wrote:-
“Section 41 may therefore plausibly be interpreted as requiring all organs of state and spheres of government in different spheres to co-operate as envisaged and may not apply to independent constitutional institutions who do not strictly speaking form part of any of the three spheres of government.”
In so far as anything useful can be extracted from this, it must be that you doubt the NPA is an organ of state, am I right?
Let’s see if a child can help us.
Section 40(1)h. reads:- “All spheres of government and all organs of state within each sphere must co-operate with one another in mutual trust and good faith by . . “ [We can leave the details aside for now].
Small boy: Gramps, what’s an organ of state?
Gramps: Ffff!!!*??$!
[Rather not, I don’t want to get hit with another bullying rap.]
Let’s see if the definition of “organ of state” in s. 239 of the Constitution helps :-
” ‘organ of state’ means . . . (b) any other functionary or institution (i) exercising a power or performing a function in terms of the Constitution . . .”
Have we all read s.179(2) recently? Yup, the NPA exercises a power in terms of the Constitution.
Hands up those who think the NPA isn’t within definition (b)(i)?
Hands up those who think the NPA isn’t within the purview of s.41(1)?
Nobody? I thought so.
All clear now, Mr. Professor?
Pierre De Vos // Dec 9, 2008 at 5:31 pm
How do you derive that the president, the minister and the DG lied about the so called ‘real’ reason for suspending the then NDPP?
Please highlight these for me, cause I think you are really making a fouled up reading of the situation.
DGMS, one day you should take a course in Constitutional interpretation. Until then, good night and good luck.
DGMS,
Make sure that it is not Pierre who is giving the class. In fact, send him an invite or even let him go in your place.
Khosi, you really should read with more attention. My post argued that if Vuyo’s (and other’s) contention that the President really suspended Pikoli because of national security is correct, then it implies these people lied about the real reasons for his suspension as they never presented this as a reason for the suspension. Easy really. Just read. Then think. Then write. Sela.
But Pierre, I do not need to read really. All I need is to apply logic.
What reasons did the President give for suspending Pikoli. And if these differ from Vuyo,s contention, why does it equate to the President telling a lie?
khosi
“But Pierre, I do not need to read really. All I need is to apply logic.”
How can you be logic on a subject without reading about it? Are you some kind of a God?
koos // Dec 9, 2008 at 9:05 pm
Firstly do me a favour and change your name to koosthestupid or something of that sort. I do not like my name sounding like those of stupid people.
Now as for reading or not reading. You are obviously stupid enough not to leave room for the fact that I am very aware of what is in discussion and the reasons the President gave for the suspension. Hence no need to read any further.
For the record: I know nothing about law, constitutional or otherwise. This is what I make of it:
NDPP wants to arrest Selebi. He does in fact work with the organs of state (as per article 4 whatever), because he notifies the minister of justice and the prez. The prez says well, give it a week or two. NDPP says ok fine, I give it a week. NDPP issues an arrest for Selebi after a week. Prez says: “What about the or two? You’re suspended!”. NDPP says wtf? Prez sez STFU n00b lulz.
Turns out there’s an enquiry (I don’t think it was a formal inquiry because then it would’ve been much harder for those involved to decline testifying before the commission… just an assumption from a n00b ok?). Enquiry finds that the NDPP did nothing wrong.
Enquiry also finds that there was a valid reason to suspend someone who did nothing wrong. Does not compute ok?
Meaning, neither those who got suspended nor those who suspended them did anything wrong, because it was in the interest of National Security for us as South Africans to think our politicians are not running a Mafia arms deal ring for the entire Southern African region and beyond.
Right. Pikoli deserves a medal of honour because he put his country first and his employers second.
Have you ever, in your life, read such tosh as the Professor has disburdened himself of in our little discussion over what section 41(1) actually says! Opps! I forgot, it’s not what it says – apparently.
I should rename myself whatthesectionreallysays, just to remind him of his folly, obstinacy, perverseness and puerility.
This man is entrusted with teaching constitutional law to our tender youth. He cannot even read section 41(1) together with the simple definition of “organ of state” without drifting off into the larger lunacy.
Come off it, pal. Game over on s.41(1).
In fact we know he can read, just as we know he can rant and rave and muddle along with his ever-widening conspiracies and the rest of his paraphernalia; but he is too arrogant (the vice of schoolmasters) to admit he flunked a childishly simple test. Opps, again! I was guilty of bullying the man when I chided him before – so says he.
His blustering oratory betrayed him at one point in making a foolish and thoughtless remark in his previous article on a point on which he can positively be (and has been) proved wrong, but he has found it impossible to admit it.
Now this, truly, offends against the most fundamental principles of debate. The man is a laughing stock unless and until he brings himself to the bitter necessity of acknowledging his error.
And he sits so comfortably in judgment on the motives, the reading skills (it is almost his favourite mode of sarcasm, from which he has now spectacularly disabled himself), the integrity and the competence of others.
***
Dear Garg,
Your post is very cute and amusing but it is still no more tasty than boiled tripe. For all that, I can stomach it ten times more than the witless gibberish PdV peddles from time to time.
***
Have a nice night, people.
Seriously.
The man has betrayed his profession, the law, and you.
Garg, you have made my night.
Pierre, Dontgetmestarted
I have been following your debate with interest. But really guys these debates make me think of the words attributed to Karl Rove: “Guys like you are ‘in what we call the reality-based community’, which we define as people ‘who believe that solutions emerge from your judicious study of discernible reality. That’s not the way the world really works anymore,we’re an empire now, and when we act, we create our own reality. And while you’re studying that reality — judiciously, as you will — we’ll act again, creating other new realities, which you can study too, and that’s how things will sort out. We’re history’s actors.. and you, all of you, will be left to just study what we do.’ ”
Really, you guys are debating these issues as if the President made his decision after judiciously studying Ginwala’s report and after taking advice from various legal and constitutional experts. Of course that’s not what happened!
This decision was obviously made for political reasons. It would have been political suicide for the President to re-instate Pikoli. Anyone who wants to deny this is either naive or a liar.
I am an attorney, but when I talk about these issues I do not even mention the legal issues, because that’s not what is important here. What is important that while we are studying the dismissal of Pikoli, judiciously as we will, the ANC is going to act again, and appoint a new head of the NPA.
And while we study that reality, this new head is probably going to to bring to an end the prosecution of the President of the ANC…and you guys will once again debate that decision here on this very forum.
Pierre, while I am typing this I am listening to you on Morning Live!
I see those counter-revolutionary, racists at Cosatu seem to agree with much of my analysis about the Ginwala Report. They must all be animated by a deep hatred of black people. . . See http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page72308?oid=112324&sn=Marketingweb%20detail
“Other criticisms made by the report are more problematical. The report identified “some deficiencies in the capacity and understanding of Adv Pikoli to fully execute the range of responsibilities attached to the office of the NDPP – more specifically, the lack of understanding on his part of his responsibility to operate within a strict security environment and to ensure that the NPA, and the DSO, operate in a manner that takes into account the community interest and does not compromise national security… Advocate Pikoli did not fully appreciate the sensitivities of the political environment in which the NPA operates, and his responsibility to manage this environment”.
This appears to contradict the principle that it is the NPA’s duty to act independently of the executive and this appears to be confirmed by the report’s worrying statement that “Adv Pikoli needs to always recognise the final responsibility of the minister and should have proactively made her aware of all the matters of a sensitive nature that the NPA became aware of in the course of its functions, and fully and regularly briefed her on the progress of high profile investigations and prosecutions.”
This section of the report appears to reach a bizarre conclusion. It confirms precisely that the serious charges of political interference by the government in the NPA’s decisions are not only true but are justified.”
I cant understand why Dontgetmestarted and Khosi cant seem to grasp the concept of the report.
THE REPORT found Pikoli to be Fit and Proper
In her report, Ginwala expressed displeasure at Simelane’s conduct in the preparation of government submissions and in his oral testimony, which she found in many respects to be inaccurate or without any basis in fact and law.
“He was forced to concede during cross-examination that the allegations he made against Adv Pikoli were without foundation,” Ginwala said.
“His testimony before the enquiry was also not particularly helpful to me; his evidence was contradictory, and I found him to be arrogant and condescending in his attitude towards Adv Pikoli,” she said.
This report clears Pikoli on all charges of being a national security threat and not fit and proper
From the report
In its written submissions and the oral evidence given by its witnesses Government made a wide range of allegations against Adv Piloli to demonstrate that he is no longer a fit and proper person to hold office as the NDPP. Some of these allegations are quite tangential to the terms of reference as well as the reasons for the suspension articulated in Adv Pikoli’s letter of suspension. These allegations are often also far removed in time from the date of the suspension. The nature and content of the allegations against Adv Pikoli also changed during the course of the Enquiry.
These allogations which DONTGETMESTARTED pointed out earlier was the brown report which proved to be rubbish
11.1 Government alleged that the relationship between the Minister and Adv Pikoli had broken down irretrievably.
This allegation has not been proven.
11.2 It was alleged that Adv Pikoli should not have authorised plea and sentence agreements with the persons implicated in the alleged murder of Mr Brett Kebble and should rather have prosecuted all suspects.
Government did not show that Adv Pikoli, in exercising his discretion of whether or not to prosecute, did not take heed of the threat posed by organised crime to national security.
11.3 Government alleged that Adv Pikoli should not have concluded plea and sentence agreements with some of the alleged Equatorial Guinea mercenaries, and should not have authorised the prosecution of the other alleged Equatorial Guinea mercenaries. It was alleged that the plea and sentence agreements with Mr Agliotti and Mr Nassif did not take due account of the prosecution policy and particularly the public interest and the national security interests of the Republic.
Government failed to produce evidence to show that the cases of plea and sentence agreements it cited had contravened the prosecution policy.
11.5 Government complained that Adv Pikoli failed to account to the Director General of the Department of Justice and Constitutional Development, and thereby prevented the latter form executing his accounting responsibilities. Adv Pikoli was not obliged to account to the DG: Justice in the manner alleged by Government.
11.9 Government alleged that Adv Pikoli should have informed the Minister before applying for search and seizure warrants at the Union Buildings and Tuynhuys, and should have ensured that adequate measures were in place to prevent any security breaches during the execution of the warrants.
11.10 Government complained that Adv Pikoli failed to inform the Minister and the President prior to applying for the warrants of arrest and search and seizure against the National Commissioner of Police, and that he failed to exhaust the options for accessing information from the SAPS put in place by the Presidency, which information was required by the DSO for its investigation of Operation “Bad Guys”.
13 I have found that Government has failed to prove many of these allegations and has not demonstrated that Adv Pikoli is no longer fit and proper to hold office as the NDPP. The grounds advanced by Government for the suspension of Adv Pikoli have not been established before the Enquiry.
17 My most serious concerns arise from the evidence of the discussions between the President and Adv Pikoli at their meetings just prior to Adv Pikoli’s suspension. Adv Pikoli also did not give due consideration to the actions the President might need to take in order to defuse a potential security crisis and instability and to preserve the country’s international reputation. He did not take seriously the President’s concerns about the mood of the SAPS and their possible reaction to the arrest of the National Commissioner; and even challenged the President’s assessment of the time he would require to manage the situation. Had this been presented as a reason for the suspension, when his conduct would have held a real risk of undermining national security, I would not have hesitated to find the reason to be legitimate. However, these were not among the reasons put forward by Government before this Enquiry.
This statement to me is laughable “President might need to take in order to defuse a potential security crisis”
All Mbeki would of said is theres “no crises”
*Ahem.
My trusty rusty of the Constitution reads (what a smart Constitution..):
Government of the Republic
40.(1) In the Republic, government is constituted as national, provincial and local spheres of government which are distinctive, interdependent and interrelated.
(2) All spheres of government must observe and adhere to the principles in this Chapter and conduct their activities within the parameters that the Chapter provides.
Principles of co-operative government and intergovernmental relations
41.(1) All spheres of government and all organs of state within each sphere must –
…
(e) respect the constitutional status, institutions, powers and functions of government in the other spheres
(f) not assume any power or function except those conferred on them in terms of the Constitution
…
Firstly, it is a valid interpretation to suggest that this section refers only to national, provincial and local spheres of government in as much as they relate to government of the Republic. The National Prosecuting Authority would then obviously be within the national sphere of government, however, its functions do not pertain to the government of the Republic as such.
Each following chapter of the Constitution seems to deal with respectively the national, provincial and local spheres of government, sometimes going as far as listing all the positions that these spheres imply. Q: Where does the NPA fall within these spheres? A: It doesn’t. The desription of the NPA falls under Chapter 8 (Prosecuting authority, 179(1)), because the NPA is not in fact an interdependent and interrelated organ of the state.
Clearly, the intent here was to safeguard the independence of these safeguarding organs of state precisely to prevent them from being constitutionally bound to play along with the ammunition cartel in the interest of national security.
This becomes more clear when one considers that Chapter 3, 41.(1)(h)(vi) claims that spheres of government and organs of the state should avoid legal proceedings against each other, yet:
The Constitution of the Republic of South Africa (Act No. 108 of 1996), created a single National Prosecution Authority (the “NPA”), which is governed by the National Prosecuting Authority Act (Act No. 32 of 1998). The Constitution, read with this Act, provides the NPA with the power to institute criminal proceedings on behalf of the State, to carry out any necessary functions incidental to institution of criminal proceedings and to discontinue criminal proceedings.
http://en.wikipedia.org/wiki/National_Prosecuting_Authority
So dontgetmestarted, I’ve never read such tosh as that which implied that the NDPP is an organ of the state that falls under the national, provincial or local spheres of ordinary government of the Republic. It doesn’t make sense to me, and if it did fall under those ordinary sections, the prosecuting authority would certainly be afforded a spot among the other luminaries described in their appropriate sections and not in a different section entirely?
The prosecuting authority is not an interdependent or interrelated organ of the state, so Chapter 3 does not apply. It falls under Chapter 8, namely the Courts and Administration of Justice. Right?
This means that the Courts (and the office of the NPA) enjoy judicial authority:
165.(2) The courts are independent and subject only to the Constitution and the law, which they must apply impartially without fear, favour or prejudice.
National security? Prejudice and/or fear. The president, being part of the interrelated and interdependent spheres of government, acts in the interest of national security. The NPA, being part of judicial authority, acts in the interest of the Constitution and The Law. Just like Judge Dredd.
Prof. You have suggested that Donotgetmestarted is uneducated in constitutional interpretation. I frankly do not understand the basis for such a strong suggestion. I reckon any interested layperson can even learn constitutional interpretation through careful and thorough study of legion caselaw relating to interpretation in a constitutional context. One does not need to enrol for a course to be imbued with that quality.
I propose that the DSO is an Organ of State which must indeed co-operate with other organs in its operational activities, including briefing the Minister about their activities, investigations and prosecutions. I do not see how reporting will jeopardise or fetter the DSO’s funstional independence.
I concur with the crystically clear interpretation proferred by DGMS that the DSO is an organ of state. The fact that it is not specifically mentioned in the Constitution does not detract from the fact that the DSO falls in the broad frame of the Executive as does general administration.
The DSO enjoys protection from interference by the Cabinet in its operational activities as to who to charge or not to charge, but does notr include not accounting for its actions. The Director is an employee who must explain and justify his actions, but no one must direct him as regards how he must do his work.
I do not agree that Ginwala’s Report is riddled with unforgivable contradictions and inconsistencies. The state has not led convincing evidence on crucial aspects of the investigation or inquiry. What is patently clear is that access to classified documents was accessed by unvetted security personel. This alone compromises the security of the State.
A person who allows this is unfit and improper to head such a sensative organisation. It is on this aspect where I will invite your wrath. We differ on this one. I do not think the state presented a strong case on all the aspects but the security clearance issue and the lax supervision of the officials who give plea bargains to murders of freedom fighters !.
The ambit of the inquiry was vast and broad as to include any issue that can cast aspersions on the intergrity of the National Director.
I do agree that the Decision of the President may be regarded as ultra vires as the inquiry did not make any finding that Pikoli was unfit and improper. I disagree with the report on this aspect as I hold that employment of unvetted personnel compromises national security. investigations undertaken by unreliable personnel is prejudicial to the state, thus 179 is infringed. Prejudice operates inversely to paucity of fear and favour.
Consistent reporting does not obliterate fearlessness and it is certainly a favour, but a duty to report to your supervisor ! it issilly for Prof to suggest that this will reduce the DSO into a report writing institution. We write report on every single thing we undertake in the State.
In the event, the President regarded the report as illogical the first port of call was to approach a court of law to review the finding in order to draw strength for the decision to dismiss Pikoli. The action may ,as it stands, be regarded as capricious and arbitrary. This is my viewpoint.
But Prof you have no basis to disgree with the interpretation that DSO is na organ of the state; it is !
I do not have to wear my constitutional jurisprudence cap to see and fathom this stark reality. Your general analysis is convincing, coherent and propably correct but you must concede on the interpretation by DGMS regarding co-operative governance!
Ishmael Malale // Dec 10, 2008 at 9:32 am
OF Pierre de Vos’s analysis, you say:-
‘Your general analysis is convincing, coherent and propably correct ‘
I hope that you are not being deceived by Pierre’s eloquence, which I also do not doubt. I pray his eloquence does not fool you into not probing the substance behind his words, which, to my view, are mostly dishonest or, at best, wrong. Yes, there are times whens he rings the truth and eloquently so, but that does not ‘generally’ happen with him.
Cause really, if one thinks of it, and what he is saying was the truth and could be clearly seen, then he would not need his eloquence to make it believable.
I cant but help but compare Mbeki to Nixon
Mbeki’s watergate scandel
Nixon and the watergate scandel
The scandal revealed the existence of a White House dirty tricks squad, which was behind an orchestrated campaign of political sabotage, an enemies list, a “plumbers” unit to plug political leaks and a secret campaign slush fund associated with CRP, all with high-level administration involvement. It brought into the open the involvement of Attorney General John N. Mitchell in the dirty tricks, funds and cover-up, as well as key White House advisers, all of whom went to prison for these crimes, for sentences of one to four years. The jail terms had been shortened on the basis of the high level of the convicted, and their cooperation in the hearings.[citation needed]
South Africas watergate the email hoax, the Browse Mole Report pilitical sabotage between Zuma and Mbeki.
Director-General Menzi Simelane
lol honestly its like watching an african version of it.
Nice one there ” rumoured that she is often tired and emotional.” If the rumours are true, she would not be the only member of Mbeki’s cabinet. Careful or you may have to invoke the retort attributed to the defendant in Arkell v Pressdram.
Garg Umzola, you are off the mark. I must respectfully point out that all the chapters are menat to illuminate certain areas and does not derogate from the fact that they are affected by chapter 3.
I want to give a simplistic example. We have the public administration covered in chapter 10.
The public administration straddles paricularly the national and provincial spheres but is affected by the chapter on co-operstive governance.
The DSO is established in terms of section 179 of the Constitution to perform and exercise functions and powers enunciated in a specific legislation, thus is an organ of state as defined in section 239 of the constitution.
The DSO is an organ that is an intergral part of the executing. Is not part of the judiciary or a legislative body. It is a funtionally independent state apparatus. This means decisions to prosecute or not prosecute are not fettered by ministerial interventionism.
Yet is must be a lone ranger, it must co-operate with other institutions in its operational arena. For instance, the Minister must know its work as she is responsible for oversight and policy intervention at the appropriate point. She must be kept in the loop. Independence does not mean unaccoutability.
The interpretation of DGMS is perfectly correct and does need complex professorial constitutional exptise. Yet the minister or the president cannot direct the DSO as to who not to charge or not. This is their exclusive enterprise but must co-operatively interact with other institutions in the process.
For example, investigators must be vetted by the NIA in order to access classified documents in their investigations, failing which the national security may be jeopardised or compromised. On this score, Pikoli was wanting. On the rest of the stories there was not very convincing evidence on a myriad of allegations or aspects on which the inquiry was to touch.
There is not any evidence to controvert that there was open hostility betwen the Police, DSO and NIA. The arrest of the National Commisioner pof Police is such a delicate exercise that need a well-thoughtout approach.
The President merely sough two weeks to intervene and ensure co-operation of the Commissioner. This was too liitle to ask.
It did not fetter the actual decision to prosecute the Commissioner. On national security considerations, Mbeki wanted to intervene by conversing with Commissioner to co-operate!
This was a good approach. I know they were close friends, an extraneous consideration! but national security was the supreme factor here not friendship. Anyway, this does not make a heap of beans.
My contention is that the the DSO cannot gather intelligence, this the arena of NIA; it cannot investigate cases with unreliable investigators and refuse or fail to furnish reports to supervisors. This would be arkward.
@ dontgetmestarted since your ignoring me how
“Section 41 may therefore plausibly be interpreted as requiring all organs of state and spheres of government in different spheres to co-operate as envisaged and may not apply to independent constitutional institutions who do not strictly speaking form part of any of the three spheres of government.”
In so far as anything useful can be extracted from this, it must be that you doubt the NPA is an organ of state, am I right?
UMMMMM WRONG!!!!!!!!
about this straight from the horses mouth
“The NPA is an independent institution and does not have to get any permission from the minister before charging whoever it wants to charge,” Mabandla’s spokesman Zolile Nqayi said.
All the NPA was required to do was to brief the minister on its decision.
and the professor is right Dontgetmestarted you need to learn more about constituntional law
In terms of Section 165 of the Constitution, the judicial authority in South Africa is vested in the courts, which are independent and subject only to the Constitution and the law.
No person or organ of State may interfere with the functioning of the courts, and an order or decision of a court binds all organs of State and persons to whom it applies.
The Department of Justice and Constitutional Development is responsible for the administration of the courts and constitutional development. It is the mission of the Department to uphold and protect the Constitution and the rule of the law. The Department is accountable to the public and the State in rendering accessible, fair, speedy and cost-effective administration of justice in the interest of a safer and more secure South Africa. The Department aims to achieve this by promoting constitutional democracy, providing appropriate legal services and the sound management of courts, and alternative dispute-resolution mechanisms.
It performs these functions in conjunction with judges, magistrates, the National Director of Public Prosecutions (NDPP) and the Directors of Public Prosecutions (DPPs), who are independent. The Department’s responsibilities include the provision of adequate resources for the proper and efficient functioning of the criminal and civil justice systems. It provides legislation and administrative support for the establishment of institutions required by the Constitution.
The judicial authority in South Africa is vested in the courts, which are independent and subject only to the Constitution and the law.
IChris NCdaniel, the judiciary does not include the NPA yet all legal practioners, prosecutors and the judges are regarded as the officers of the court(s).
We need to look beyond simplistic writings or reflections. If what you give is your knowledge of constitutional law, it is deeply befuddled.
The judges do not make any determination as who to charge or not, it is the area of the NPA which is an independent state apparatus attached to the executive arm of the State. As to the role and status of Courts you are dead correct Sir, but seemingly lost as regards the debate. We are not dealing with the Courts here. Prof, advise you supporter here!
The courts are of course vested with judicial authority but certainly not bestowed with prosecutorial authority. A prosecutor and a Judge are not members of the Judiciary. The Prosecutors are normal employees attached to the NPA, an independent institution which does of course account to the minister. The JUDGES DO NOT.
@ Ishmael
I propose that the DSO is an Organ of State which must indeed co-operate with other organs in its operational activities, including briefing the Minister about their activities, investigations and prosecutions. I do not see how reporting will jeopardise or fetter the DSO’s funstional independence.
Well the DSO use to fall under the NPA and since the NPA is an independent organ made the DSO subject only to the NPA.
However the bright idea of the ANC decided to release the DSO and fall under the SAPS making it now an organ of state, making one of our best crime fighting units a lam duck
dgms does not doubt that the NPA is an organ of state, he so asserts and Prof does not differ on this score. He challenges the pace and intensity of acoutability of the NPA to the Minister. He is presumably satisfied with the annual report which the NPA must furnis to the Minister. He thinks they must contantly report high profile cases to the Minister as suggested by the Ginwala report. This is debatable. I hold that unvetted investigators is a cruacial issue for the fitness and propriety of the Director.
Co-operative functioning is the principle of our constitutional democracy. No lone rangers here!
No constitutional education attacks warranted!
Parliament is to start early next year to deal with the Pres’s decision and an ad hoc joint committee will be convened. A rubber stamping exercise no doubt, and just as with the demise of the Scorpions, parliament will again be reduced to an arm of Luthuli House. Really sad to see the Khosi’s and DGMS’s of the world defy common sense and logic in their responses – maybe angling for jobs in the ANC/Government or maybe there already?
I suppose you want to suggest that the DSO (for lack of knowledge of the new name) would become an unindependent organ of state as consequence of the legislative amendmennts which took the DSO into the SAPS. You may be correct on this score.
I maintain that the reason was not to make the DSO a lame duck but to limit the universal powers which were being abused by the NPA and ensure that we have a single strong police authority.
The police have a legal duty to investigate crime. The ANC cannot even direct otherwise. The DSO has always been an organ of the state and reading your blog suggest we do agree on that point.
Do you still think DGMS needs constitutional interpretation tutillage!
Ishmael
“the judiciary does not include the NPA”
did i say that? No I said
“It performs these functions in conjunction with judges”
Ismael
We need to look beyond simplistic writings or reflections
No you just need to read properly
Im just merely pointing out that the NPA is an independent body which you and Co cant seem to grasp and i really dont like the fact how you guys try belittle a professor of the LAW who has spent his whole life studying the subject and coming on here with arrogance.
I do not think spoiler is adding any value to the debate. You have no right to attack Khosi and DGMS by suggesting that they are ingratiating themselves to Luthuli for jobs.
You do not even know how much they earn and the sort of work they do. We should not reduce debates to such derogatory epithets.
I have once articulated that I will take partisan stances as a member and leaders of the ANC, but must be willing to agree to good points raised by debate opponents.
I have several personal friends in parliament. I will ask them to join the debate without disclosing their identity in order to tap into their thinking.
I regards this site as a platform of robust debate which will go a long way to enhance our decision making processes. The legal issues raised here are pertinent, at times tinged with political undertones. That is not a problem. We have DA, COPE, ANC, AFP, unalligned debaters on the blog. I hope you will not expell me because I sound ANC most of the time in my contribution. I also debate from a legal context when necessary.
Hey, I reflect as of you attacked me. spoiler. I hear the rumours that Pikoli is no longer interested on the job. He had gotten a lucrative package in the Private Sector. I wish I could be appointed to the position and will fire Mpshe and appoint you as my deputy to safeguard independence!
Ismael
I maintain that the reason was not to make the DSO a lame duck but to limit the universal powers which were being abused by the NPA and ensure that we have a single strong police authority.
why limite an organ that did its job effectivly I dont get it i cant understand the mentality?
94% convection rate over 2000 arrest is not abusing its could working
How can you justify that?
The ANC cannot even direct otherwise.
No the ANC can seem to do what it wants since it thinks its jesus bloody christ
The DSO has always been an organ of the state
No it has always been part of the NPA then it has been moved to the SAPS making it now an organ of the state
I am also a legal scholar specialising in costitutional law. There is not single individual or professor who commands monopoly of consititutional law.
There differences of opinion that arise in collegial discourse. We all share deep respect for prof and he equally respects the bloggers. At times the gloves come off it is the inevitable attributes of debate.
I will be a professor in the future too, but will never accuse everybody with whom I differ as less knowledgeable. That will constitute arrogance. I must say we enjoy the arguments of Prof, de Vos. He does err and we correct where we can.
I take your point that we should not sound derogatory or bellittling of his valuable constribution to the debate. I hope you are angry on his behalf. He is a seasoned debator who fathoms all I RAISED !
Chris the ANC does not think ot is Jesus Christ. it is your name that sounds closer. We in the ANC are all of us arrogant. We have a potporri of personalities from complex experts to down rights stupids like myself.
What we all like though is unremitting polemical discourse! We do not fight during debates, we urgue fiercely !
“Not arrogant”
Ishmael, I agree with your post of 11:24. What is required is a willingness to DEBATE. Where people shout invective and fail to respond to one’s arguments – merely insulting one and asserting their original point without any rebuttal of one’s own submissions – the debate breaks down. That is when rather withdraw because then there is nothing intellectually interesting to say.
Ismael
Much respect
man of honour i like it.
Ismael ou cant deny the fact there is something fishy with the report and the president and former presidents decision on pikilo goes much deeper than this if you can think of the B.mole report and the hoax email all of this started from that time.
Ismael im from the states and i cant help but see parallels between Nixon and Mbeki and the infighting that is ablaze at the ANC camp.
The both these presidents lied both these presidents are trying to sabotage enemes. This whole thing is revolving around Zuma plan and simple.
Ishmael Malale
I adore your diplomacy. In isiZulu we say – ungumaluma ephephetha njengegundane.
I hope you are also strong in the Nguni vernacular. Otherwise tell me, I will explain the meaning of the phrase to you.
I really wish you end up in parliament next year.
Prof. you are correct. I will suggest to bloggers that we stop attacking another and only articulate our viewpoints will some element of notable research and insight to enrich the debate.
Khosi, I am Pedi but do understand what you saying. I AM naturally a courtaseous personality. I must confess that I was transformed into an attacker during involvement with the blog ha! ha! ha !
Pierre De Vos // Dec 10, 2008 at 11:32 am
But Pierre, you yourself are not clean when it comes to this. Sarcasm is your weapon of choice.
I am not saying that I am clean (I am not), all I am saying is that acknowledging one own mistakes will also go a long way in reducing this problem.
I honestly believe that there was less extracted from the Inquiry. The man was,maybe, supposed to return to his job and be directed to swiftly ensure that all his men are vetted. anyway, the men are now going to join the police force. But the President, who I personally know as a kind and thoughtful man, decided otherwise.
He strongly believes that Pikoli compromised national security. He might be correct or wrong.
I worth noting that Pikoli is going anyway, he has a new attractive job, better than chasing dangerous and sophisticated criminals.
Ishmael Malale // Dec 10, 2008 at 11:52 am
What job?
Khosi,
I personally think Pikoli ought to have been retained(as Director) as he exculpated himself on the most fundamental aspects of the inquiry and the inquiry had found him still fit and proper to occupy his position despite the indiscretions.
I note that he did not regard the intervention of President Mbeki as crucial on Selebi matter and his unvetted private troops!
I know I may be utterly wrong.
He is going to be legal advisor for Velaphanda. It is only grapevine.
Ismael so from ur sources who do you think is going to head the NPA now?
MMMmmm wonder if pikoli will write a book about this
I certainly do not know. I think one could write a great book about the impact of the NPA in redefining South African Politics and legal jurisprudence
Ishmael Malale // Dec 10, 2008 at 12:03 pm
If what you are saying about the Mvela job materializes, Pikoli would have done himself a disservice. Look, I think the guy did a splendid job as NDPP. Its is just that, in real life, the principled thing to do is not always hand in hand with the correct thing to do. So forces beyond his control conspired against a pretty decent fellow.
If he was to take that job, he would not be doing the principled thing at all. If he really feels that people are being protected; then he should challenge his dismissal. But I guess, the past year and its result have taught him that being to rigid is not the most productive thing to do.
Its a disservice because his new boss, directly or indirectly, is part of whatever mess that conspired to see him out as NDPP. Anything he says from now on, has a very good chance of having less weight because he would now mercenary to his new loyalty.
But I guess the ANC does take care of its own!!!?
Ishmael Malale // Dec 10, 2008 at 11:39 am
…………………………………………………………………….
I hope you will not be tempted to think that even those who are hyper-sensitive are attacked. We should also stop people from elevating themselves to semi-gods in this blog. In fact, those people are the very first ones to cry foul when they are counter-attacked.
Khosi, yes, I sometimes respond in kind with sarcasm when I feel people fail to engage with the issues (and, mea culpa, even sometimes when I am just irritated by the constant carping). My pre-emptive news years resolution is not to get engaged in such tiffs – not enough time in the day. But I think the reason many people read this Blog is because I am relatively opinionated and sometimes make sarcastic jokes in my posts so I will continue to do that. One does not want things to get too boring either….
He must take a polygraph and then tell the national why he accompanied the President on a trip and then charged Zuma. I think he discussed this with Mbeki and agreed but differed on Selebi. This is the conspiracy theory I hold. On the whole, I think he is a strong character and can act independently of the President, especially on cases he strongly feels he must act !.
He can make money out of his dismissal, I suppose.
He has to wait for the parliamentary process to conclude as a definite decision had not been taken. The matter is not yet ripe as to be justiciable.
I think we had a turbulent four years in our political and legal history.
The prof’s sarcams is welcome and eneregises the debate. I think Khosi and Prof must hold hands and say sorry for their tough exchange on the blog of scoundrels.
Sne you correct. I truely agree. The hypersensative must go swim in the swamp! Some bit of arrogance will do here NE!
“Vusi Pikoli’s lawyers are set to take parliament to court to have him reinstated after he was axed by President Kgalema Motlanthe yesterday. ”
http://www.sowetan.co.za/News/Article.aspx?id=901242
Ishmael
got a question for you…ur ANC member yes?
this whole situation with the NPA and the report that came out. Now I understand this report would vindicate Mbeki for political interference.
Would this report not embarrase the Zuma camp for hastily firing Mbeki?
In his September 12 ruling, Judge Chris Nicholson also referred to Mbeki’s alleged interference in saving Selebi from prosecution, highlighting this as another example of political meddling in the NPA’s work.
I will agree with you Motlanthe is a sound guy I have only heard good things about him and i actually would ote if i could for someone like him But his judgement on the matter was weak but i think he did for a reason.
This report has just earned points for the NPA against Zuma and as an outsider looking at the ANC I see 3 centres of power Mbeki Zuma and Motlanthe. I would imagin Motlanthe has toyed with the idea for gunning for presidency himself but cant do that with out toppling Zuma?
Your ANC house is under a massive attack from your 3 centres of power and from the NPA and Cope. I must say i find it rather interesting
Nkululeko, I conveyed the message to Julius Malema. He ackowledged your views but indicated that some controversy will sprout from time to time!
Chris, I must state that it is difficult to prove the allegations of the conspiracies of meddling by the former President.
The crux of the reasons for the dismissal of Mbeki is the fact that he did not co-operate with the ANC leadership on anything. He was anguished by his being voted out at Polokwane. The judgment became a spark that ignited a fire.
The inception of democracy on the 27th April 1994 heralded an unparralled political pilgrimage into the structures of the ANC by people who were inspired not exclusively by the deepening and advancement of the national democratic revolution, but self-aggrandisement.
The rupture of the ANC was bound to happen looking at the suppression of the rank and file for such a long time during the tenure of Presidentr Mbeki.
The formation of COPE will have some adverse effect on our support especially in the black middle class who believe that we are in electoral democracy. a period in which the ANC as a liberation movement is not relevant. The ANC believes that it is relevant as ever! The contest is going to be interesting and very fiernce.
The by-elections will demostrate the extent of the damage by COPE. In the Province where I come from, LIMPOPO PROVINCE, Cope is only joined by very few leaders of government that enjoyed the spoins of the State in the last five years. The ordinary people are uninterested.
The ruling on the meddling issue was not the epicentre of Zuma’s application. it was a windfall upon which the political demise of Mbeki was nailed.
The inquiry demonstrated that there was little reason to deal with Pikoli, except for the indiscretions of unvetted troops and poorly reasoned exoneration of murders from prosecution. Plea bargains!
I think the report will not be regarded as evidence unless the persons who partook in it testify. It may give notional points to the NPA, I so guess. it is negligible.
I truly think the fight between Mbeki and Zuma is deeply atrocious. It was blind to the independence of the NPA. This is the view I strongly hold. There are people who have been close to the President that have been alienated by the battle, Ngcuka, Pikoli, Masetlha and so on.
Prof,
I agree you need to keep the blog interesting so keep up the good work. It must be remembered that some or even most peole to this blog to unwind so it would just be as tedious to come to a blog where everyone and everything are just as serious.
Khosi,
On Prof. Pierre’s objectivity regarding Mbeki, Zuma, ANC, etc. can you realistically expect him to be objective? I believe Prof. merely expresses his opinions here so it would be unfair to expect an ‘opinion’ to be ‘objective’. The mere fact that it is an opinion on its own dispenses with the objective criterion and subjects it to the subjective conclusions of the relevant person opining or making an opinion, contextually being Prof. Pierre.
It would have been a different story had this been news reporting site such as The Times website where, other than the editorial page and the viewers’ views, the journalists are expected to provide the facts as they are and expressly distinguish between what is factual and what their opinions are and their conclusions are.
The best thing we can demand Prof. Pierre to do is to formulate his ‘opinions’ on objective and clear facts and come to his conclusions which of course may not necessarily be correct or reasonably possible, i.e. objectively speaking. Therefore, I believe asking him to be objective when he expresses his mind and not reporting the news is to place too much a burden on his shoulders that even a reasonable person would not be able to carry.
Ishmael Malale // Dec 10, 2008 at 12:30 pm
I differ with you here. Here is why:-
1.) It is a matter of record that the ex-President and Pikoli boarded Inkwazi and together went to South America. Inkwazi is Nguni for Fish Eagle. Flight of the Fish Eagle is a popular whiskey, and the ex-president has a reputation for a love of whiskey but that is a topic for another day.
2.) After this trip, Msholozi was charged. I do not think it was a coincidence, I think the Msholozi matter was discussed.
3.)It is also a matter of record, that ex-President met Pikoli, many times on the Selebi issue. Which naturally means Selebi, as well was discussed.
4.) Earlier you made an argument, in aid to dontgetmestarted, that Pikoli was right to have the courtesy to discuss the impending arrest of Selebi with the ex-President.
The question then becomes, why is it a problem if the ex-President and the ex-NDPP did, in fact, discuss the Zuma matter. Even on a plane – name after a bird, that also inspire a name of a whiskey – going halfway across the planet? In fact, the Ginwala commission seem to have endorsed this manner of going about the arrest of senior public servants.
I never understand that chain of thought. Ishmael, please help.
Sne // Dec 10, 2008 at 1:02 pm
Awu, Sne, Mtakababa…
I did not ask for objectivity. I demanded honesty.
“The best thing we can demand Prof. Pierre to do is to formulate his ‘opinions’ on objective and clear facts and come to his conclusions which of course may not necessarily be correct or reasonably possible, i.e. objectively speaking.”
I agree with you. Can I just add… clear HONEST facts.
Mnchwah
There is a huge difference between sprouting a bit of sarcasm and down right accusing fellow bloggers of being racist. Khosi wants Pierre to acknowledge his mistakes yet he still hasn’t admitted that he was wrong when he asserted that scoundrel did not mean dishonest person. What is good for the goose is good for the gander. Hard as it may be, let’s try and elevate the debate. I read this blog to be exposed to different views and to get a feel for the reigning sentiment, not to be slandered.
@Ishmael
Eish but Ishmael, my heart is sore for Sis Peggy Nkonyeni. What a nice, down to earth lady.
I wish her well.
Heidi // Dec 10, 2008 at 1:17 pm
I cannot admit to something that is factually decrepit.
And I use the word ‘decrepit’ because I want to hint to you that I am tired of discussing this.
Khosi, what I am saying is that Pikoli had in fact had discussions with Mbeki about the Zuma and Selebi issues.
The discussions were comprehensive and detailed and touched the crux that he must charge Zuma but not charge Selebi.
Pikoli wanted to charge both in order to assert his independence. Mbeki was unimpressed and suspended him for intending to also charge a friend.
As I was not in the meetings, I do not have any evidence. It is my conspiracy theory. That is the reason I suggest a polygraph may assist us detect the truth from the lips of Pikoli.
This is the point I am raising. Equally I suggest the president is perfectly entitled to interface with the NPA to determine progress of their independent actions but not direct them as to what to do, unless where national security militated that he must reasonably intervene without fettering the functioning of the NPA.
Really, Ngcuka was rewarded with his wife being Deputy President for creating a cloud over Zuma by saying he is corrupt but the case is not winnable. This was a political ploy cloaked with befuddled legalese calculated to destroy Zuma in view of impending ANC conference. He acted perfectly. He felt so under pressure that he resigned. But the reward was worth it.
Haha. What a strong comeback, as per usual.
Ishmael Malale // Dec 10, 2008 at 1:26 pm
“The discussions were comprehensive and detailed and touched the crux that he must charge Zuma but not charge Selebi. ”
But Ishmael, where do you get this? Especially the Selebi part. Pikoli himself, said the president never told him whether to charge or not charge either of the two men. All that Pikoli said, was that, on the Selebi matter, the president asked for 2 weeks instead of the 1 week that Pikoli had in mind.
So to say the ‘discussions’ touched on the ‘crux’ of not charging Selebi without qualifying that with the timeline that was in dispute, is wrong and misguiding.
But I understand you place in life and so, your point of view.
Ismael, I like your take on the matter and think that there is a good possibility that you are correct.
Question is: Was it just friendship that he was protecting or was Mbeki trying to protect someone or something else in addition to Selebi? Perhaps other high ups are involved with the syndicates that Selebi is involved in?
It seems likely to me that this is the case when I read Pikoli’s version of events as put forth by his legal team. Mbeki asked for some time. He didn’t ask Pikoli to not prosecute at all. Maybe once Mbeki started gathering some information (perhaps by engaging the minister) he realised that many hands were tainted and that the prosecution of Selebi was far reaching and that this is where the “national security” issue stems from?
If we are whipping out the polygraph, the minister, the DG and TM must all participate in the festivities. Perhaps even Ginwala.
That precisely why Tthink the polygraph can assist. I think Pikoli was simply lying on this aspect. I am raising conjecture not facts. I am theorising what had happened.
That precisely why I think the polygraph can assist. I think Pikoli was simply lying on this aspect. I am raising conjecture not facts. I am theorising what had happened.
Why would Pikoli lie about that?
“I am raising conjecture not facts.”
@Pierre,
Are you going to throw a welcome to club party for Ishmael? Please do send me an invite!?
@Ishmael
“I am theorising what had happened.”
You me what COULD have happened. ne.
It is possible. I do not know at this stage. We must investigate if Selebe and Mbeki did not sleep at Agglioti flats when comimg back from exile. aren’t they friends? another theory! or even other big sharks.
One of my family friends once worked for the Aggliotti security attached to police intelligence! What a scoop!
“One of my family friends once worked for the Aggliotti security attached to police intelligence!”
But is this not a matter of public record already?
He still loves Mbeki but felt betrayed by the suspension. he did not want to expose the President to that extent. There were close!
He did not imagine the hurt the President would experience for the arrest and possible prosecution of close friend and confidante.
I think many big sharks are swimming in the Selebi sea. It is never just one man when it comes to things of this nature. Although sometimes only one man takes the fall.
Khosi, don’t you think I can know a little more?
Heidi, I fully agree!
@ Ismael
“The discussions were comprehensive and detailed and touched the crux that he must charge Zuma but not charge Selebi. ”
Im glad you mentioned this we seem to have the same view on a conspirecy theory here.
Remember this whole ginwala report could very much now ignite Special Browse Mole report, and also the Scorpion s’ role in gathering intelligence.
So those pushing for his reinstatement may also be preparing him for a grilling by a hostile National Assembly filled with ANC MPs only too keen to show how the NPA was abused for political purposes on Pikoli’s watch. All eyes are now on Motlanthe.
then you have the ANC hoax email report:
Tuchten read from an affidavit given by Motlanthe to the prosecution, explaining how he received the set of emails in a brown envelope in front of his office in the ANC’s Luthuli House in 2006. He was “shocked and disturbed” after reading the documents, which named senior ANC members as conspirators against Zuma, and called police National Commissioner Jackie Selebi to discuss the matter. Motlanthe also asked Masetlha, who was still director general of the NIA, to attend the meeting.
In all three reports you have the usual suspects.
This is just the start i feel the next few months in SA politics is gonna get very messy and i just hope our judiciary has some tough armour
so far the good thing about all of this is Former Justice Minister Brigitte Mabandla and incumbent Justice Director-General Menzi Simelane may find themselves in deep trouble – and possibly in jail – if some of the findings of the Ginwala Inquiry are pursued.
Ishmael Malale // Dec 10, 2008 at 1:54 pm
You see, what you have just said, is the cause of my biggest sore point about my beloved ANC and Msholozi.
1.) Msholozi is being pursued for corruption.
2.) He then says that he knows things and will pull down people with him if he is ever prosecuted.
What he is, in fact, saying is that he knows about people who transgressed laws of our country. But he would rather use that information to bargain for his own freedom.
I love the ANC, but that is wrong.
And now you are telling me that you know more. If you are to be believed, have you given this information to the authorities? as a law abiding citizen.
These NPA, Court Judges, NIA and so on were taking active part in politics. It was a sad period of our history. Legal jurisprudence directed towards a particular political result. Lobbying by judges, NPA flirting with President in plane, NIA head expelled for protecting an enemy of President, NPA head rewarded with wife’s deployment after decimating Zuma’s name without prosecution. Zuma recharged upon defeating Mbeki.
As I had said the road is very long. Politics will define the moment until a new president is elected! Book writers can benefit here.
@khosi
I love the ANC, but that is wrong.
as a law abiding citizen
these two sentences of urs pay attention. Im a republican born in michigan very strong republican state infact i love being republican , but george bush was wrong.
as a law abiding citizen I voted democrates infact our state became democrate and choose change.
the problem is this khosi no matter how corrupt Zuma could be or will be you will always choose to vote him into power why? because you feel its ur civil duty to owe the ANC ur life and freedom. that makes you a prisoner and not free to choose, infact you are still limited as you ever where before.
as a law abiding citizen it is morally wrong to vote for someone who has such a cloud over his head. either way Zuma is tanted
That I could know more was a mere joke. We should not be serious all the time. I am cooking!
The ANC must be equated to individuals it is such a collosus. It is a complex social organism! Zuma is a member alongside thousands of members, exclusive of the defectors.
KHOSI
That I could know more was a mere joke. We should not be serious all the time. I am cooking!
The ANC must be equated to individuals it is such a collosus. It is a complex social organism! Zuma is a member alongside thousands of members, exclusive of the defectors.
May I add my thanks to Ishmael for lowering the temperature. I confess my own vehemence at times obscured the issues. I also gratefully note what PdV has said about debating issues.
It is in this spirit of a comradely pursuit that I shall persist with the argument over what PdV wrote about the NPA and chapter 3 of the Constitution. It is not healthy that a serious and relevant dispute is broken off midway before all positions have been correctly understood on each side.
Unless otherwise mentioned, all references to sections and chapters are to sections of the Constitution.
I repeat the precise text of PdV’s article that I was challenging:-
“It is also not clear that chapter 3 of the Constitution applies to an independent body like the NPA as this chapter deals with relations between the three spheres of government. It is my opinion that the heavy reliance placed by the Ginwala Commission on chapter 3 completely misconstrues the nature of chapter 3 as well as the constitutional requirements for an independent NPA.”
My contentions are:-
[1] Contrary to what PdV appears to be saying here, chapter 3 is not exclusively concerned with relations between the three spheres of government.
[2] the NPA clearly falls under the purview of chapter 3 on cooperative government.
[3] the NPA so falls because [a] chapter 3 applies in terms to “organs of state”, [b] the NPA falls under the definition of “organ of state” in s.239, [c] the NPA is not such an “independent body” as would exclude it from chapter 3, and [d] even the chapter 9 institutions (which are unquestionably “independent” in a way that the NPA is not) more than arguably fall under chapter 3.
Over to you.
Ishmael Malale // Dec 10, 2008 at 2:18 pm
Fine, I am going to let it slide.
@Ishmael
Thank you for your reply. Thank you for also replying respectfully. Let’s keep it that way.
I propose that the DSO is an Organ of State which must indeed co-operate with other organs in its operational activities, including briefing the Minister about their activities, investigations and prosecutions. I do not see how reporting will jeopardise or fetter the DSO’s functional independence.
What if reporting could jeopardise national security?
The President as the Commander in chief, must be informed. He is the only man who can declare war.
In the event the Minister of Justice is the one under investigation, the President wil be approached with the report.
Garg Unzola // Dec 10, 2008 at 9:32 am
…………………………………………………………………………
I wholly agree with your view (and, therefore, that of Prof De Vos) on the interpretation of s 41 of the Constitution. dontgetmestarted and Ishmael Malale (who has recently come out in support if dontgetmestarted on this score) are clearly wrong. I think it is because of a misconception of Constitutional law and a misaprehension of the rules governing constitutional interpretation as Prof de Vos rightly pointed out.
The three pillars of the government of a democratic state are, a legislature (Parliament), an executive (President and cabinet) and judicial authority (courts). Applying a contextual (and even purposive) method of construction regarding Chapter 3 of the Constitution, it becomes clear that it only relates to “spheres of government”, which are further divided into “national, provincial and local spheres of government which are distinctive” and “organs of state within each sphere”.
Each of the succeeding chapters of the Constitution then deal with the national legislature (Chapter 4 – Parliament) and executive (Chapter 5 – President and national Executive); provincial legislatures and executives (Chapter 6); and local legislative and executive authorities (Chapter 7). The courts and the national prosecuiting authority have not been included in any of these chapters, but in Chapter 8. Neither have any of them been described anywhere in any of Chapters 3 – 8 as “spheres of government” or “organs of state” that are subject to Chapter 3, whereas the legislative and executive authorities in each of the spheres have been properly described as such.
The first additional thing that should be noted is that the judiciary (courts) is not capable of being divided into “national, provincial and local spheres” as is the case with the legislative and executive arms of government. Neither does the Constitution anywhere attempt to do so.
The second additional thing to note is that the Constitution, for good reason (namely to provide for the independence of the judicial AND prosecuting authorities), includes the National Prosecuting Authority under Chapter 8 (Courts and Adimistration of Justice), more specifically s 179. Nowhere in Chapter 8 is any court or the NPA referred to as a “sphere” or “organ of government”, even though the judiciary is one of the three pillars or arms of government in a democratic state. None of them have been made subject to the requirement in Chapter 3 that they should co-operate with any other national, provincial or local arm of government. The reason therefor is clear – if any of them were to be regarded as part of the “spheres” or “organs of government” as intended in Chapter 3, they should inter alia have to “adhere to agreed procedures” and “avoid legal proceedings against one another” [s 41(1)(h), (i)], which would mean that the courts and prosecuting authority are not independent. In Chapter 8, however, the courts ([s165(2)] and the NPA [s 179(4)] are clearly declared to be independent. Whilst it is true that the national “prosecution policy” must be determined “with the concurrence of the Cabinet Member responsible for the administration of justice” [s 179(5)(a)], and
“[t]he Cabinet Member responsible for the administration of justice must exercise final responsibility over the prosecuting authority” [s 179(6)], this does not mean that the prosecuting policy and the way in which prosecutions have to be dealt with have now been made subject to the whims and fancies of the relevant “Cabinet Member” [like Bridgitte Mbandla and Thabo Mbeki apparently thought], because that would practically mean that the relevant Minister can decide who to prosecute and who not [note Nicholson J's judgment in the Zuma matter]. However, the fact that the executive’s dictates of and relation to the NPA is described in this section of the Constitution clearly indicates that Chapter 3 of the Constitution is not applicable to the NPA, otherwise the Constitution would have included the NPA one of the Chapters clearly relating to Chapter 3.
S 179(7) of the Constitution determines that national legislation must determine all “other” matters concerning the prosecuting authority. Thus, the appointment, suspension and removal of the NDPP (Pikoli) is regulated by ss 11 – 12 of the NPA Act 32 of 1998. Nowhere in any of those sections does one find any provision authorizing the suspension or removal of an NDPP on the grounds mentioned by Kgalema Motlanthe.
Yes, dontgetmestarted (and Ishmael Malale), I therefore also think that your interpretation of the relevant sections of the Constitution (to bolster your argument that Pikoli’s suspension and dismissal have been constitutionally and statutorilly authorized) is sloppy and wrong. And, I will not apologize for that line of thinking.
Dear Anonymouse,
// Dec 10, 2008 @2.51 pm
“The courts and the national prosecuting authority have not been included in any of these chapters [viz., 4-7], but in Chapter 8. Neither have any of them been described anywhere in any of Chapters 3 – 8 as “spheres of government” or “organs of state” that are subject to Chapter 3”.
And
“Nowhere in Chapter 8 is any court or the NPA referred to as a “sphere” or “organ of government”, even though the judiciary is one of the three pillars or arms of government in a democratic state. None of them have been made subject to the requirement in Chapter 3 that they should co-operate with any other national, provincial or local arm of government.”
***
Can we pause here.
You have not once referred in your long post to s.239. It is precisely because the NPA falls under that definition that it – and every other “organ of state” so falling – is comprehended in chapter 3. No specific “organ of state” is, or needs to be, identified in chapter 3.
There is no ground for bringing into the debate the status of Courts of law, since these are expressly excluded from the definition in s.239.
The restored argument will proceed much more smoothly if you deal with my contentions piece by piece before launching into your own contentions.
Kindly, then, address the definitions section before proceeding further.
dontgetmestarted – well, s 239 can be interpreted to include the NPA, although it is not mentioned verbatim. But then again s 41(1) applies only to “organs of state WITHIN each sphere [of government]“. And we have already determined that, for the reasons advanced (esp. independence of the NPA) that the Constitution expressly provides that the NPA does not fall under the direct control [ergo, "within"] any of the national, provincial or local spheres of government [viz also para (b)(i) of the definition of "organ of state" in s 239], but that it must determine its prosecution policy with the concurrence of the relevant Minister and the relevant Minister exercises final responsibility over the NPA.
Therefore, the NPA most probably falls within the definition of para (b)(ii) of the definition of “organ of state” in s 239 – which is not “any department or administration IN the national, provincial or local sphere of government” as per sub-para (i) and s 41(1). Therefore, my argument that the NPA is excluded from Chapter 3 is sound, despite the definition of “organ of state” in s 239 – comprehende?
@dontgetmestarted
While the Constitutional Court has expressed the opinion that the NPA forms part
of the executive branch of government (see Minister of Defence v Potsane CCT
29/01 para 37 on page 28), as distinct from the judicial branch of the state, it
nevertheless enjoys a unique measure of independence from the executive.
For example, as noted in Idasa’s written submission (para 30ff), special
procedures for the appointment and removal from office of the NDPP mean that
this position enjoys unique protections comparable with if not equivalent to, for
example, the heads of some of the ‘Chapter 9’ bodies. While these latter are
‘state’ institutions, their independence is enshrined in Section 181(2) of the
Constitution, 1996.
THE NPA INDEOENDENCE IS ENSHRINED IN SECTION 181(2)
U GOT THAT RIGHT!!! THANK YOU PROF.
The last thing im gonna say
dontgetmestarted this goes beyond our constitution
Article 5(3) of the AU Convention provides that states parties undertake to:
‘Establish, maintain and strengthen independent national anti-corruption
authorities or agencies.’ (Emphasis added)
Article 9(2) of the UN Convention Against Transnational Organised Crime,
similarly, requires that:
‘Each state party shall take measures to ensure effective action by its authorities
in the prevention, detection and punishment of the corruption of public officials,
including providing such authorities with adequate independence to deter the
exertion of inappropriate influence on their actions’. (Emphasis added)
We are progressing slowly.
Anonymouse now agrees that the NPA falls under the definition of “organ of state” in s.239, and chris has given us the Concourt authority (as if it were in any doubt) that the NPA is part of the executive arm of government.
Therefore the NPA falls clearly within the term “organ of state” in chapter 3 and there is no ground for excluding it unless – am I correct in thinking this – its unique status of “independence” vis-a-vis the executive somehow excludes it from the obligation of cooperative government enshrined in chapter 3.
Is this where we have got to so far?
The unique status of independence the NPA enjoys is not to be construed as somehow transcendental.
It is “unique” precisely because it cannot be equated with the independence of the judiciary and the chapter 9 institutions, and this is because it is in a sense compromised by the political fetters imposed by s.179.
Section 165 reads:-
(1) The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.
(2) No person or organ of state may interfere with the functioning of the courts.
As for the chapter 9 institutions:-
“These institutions are independent, and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice.”
By contrast, the NPA is established under s.179, and in sub-section (4) we find only this:-
“National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice.”
This goes to operational independence; but the word “independence” does not appear in connexion with the NPA.
There is, then, no ground in reason or law why the NPA, as an organ of state within the executive arm or branch of government, does not fall within chapter 3.
Over to you.
chris / / Dec 10, 2008 @4.20 pm
Your killer point in caps at the end of your post is incorrect. s.181 (part of chapter 9) has no relevance to the NPA.
“Only through forgetfulness can man ever achieve the
illusion of possessing a ‘truth.’ . . . What, then, is truth? A mobile army of metaphors, metonyms, and anthropomorphisms—in short, a sum of human
relations, which have been enhanced, transposed, and embellished poetically and rhetorically, and which after long use seem firm, canonical, and obligatory to a people: truths are illusions about which one has forgotten that this is what they are.” – Friederich Nietzsche
Pierre De Vos // Dec 10, 2008 at 4:57 pm
HIV causes AIDS.
I hope the writer read the whole article.
Q.E.D.
It may be just me (it often is) but I am surprised, to put it no higher, that legal commentators would go up hill and down dale expounding purposive constructions and propounding contextual justification for not giving a statutory provision the credit of meaning what it says, while all the time seemingly being ignorant that a definitions section comprehensively renders all their fond imaginings redundant.
The search for truth is laborious and it has many aspects. Truth is not a monolith. In this case we have been arguing about what a section of the Constitution actually says. That’s the kind of truth where some certainty can be arrived at.
PdV has again abandoned the exercise.
can anyone tell me where I can get a copy of the heads of argument in the ANC v COPE application?
dontgetmestarted –
>We are progressing slowly.
Anonymouse now agrees that the NPA falls under the definition of “organ of state” in s.239, and chris has given us the Concourt authority (as if it were in any doubt) that the NPA is part of the executive arm of government.
Therefore the NPA falls clearly within the term “organ of state” in chapter 3 and there is no ground for excluding it unless – am I correct in thinking this – its unique status of “independence” vis-a-vis the executive somehow excludes it from the obligation of cooperative government enshrined in chapter 3.
Is this where we have got to so far?<
We are progressing slowly indeed because you seem to fail to grasp that the definition of “organ of state” in s 239 of the Constitution has an (a) part and (b) part. The NPA, if it falls within the (b) part (and only there would I concede you’re right), cannot fall in the (a) part of the definition (erroneously referred to as para (b)(i) in my post above). The (a) part of the definition defines an organ of state as “any department of state or dministration IN the national, provincial or local sphere of government”, which we have already determined the PA cannot fall in. (Note the uppercase letters!)
S 41(1) applies only to “[a]ll spheres of government [defined in s 40(1), excluding the NPA] and all organs of state WITHIN each sphere”. (Note the uppercase letters!) With me so far?
The (b) part of the definition of “organ of state” in s 239, under which the NPA may be classified, defines the concept “organ of state” as follows, “any other functionary or institution – (i) exercising a power or performing a function in terms of the Constitution or a provincial constitution [this is where I think the PA might fit in]; or (ii) exercising a public power or performing a public function in terms of any legislation [this is where the Chapters 9 - 12 "functionaries or institutions", which are not part (a) "organs of state", might fit in], but does not include a court or a judicial officer”.
Good, so we know that courts and judicial officers are not included, but expressly excluded from the definition. But WHY does the Constitution have an (a) part and a (b) part of the definition. Quite clearly the (a) part was included to define exhaustively the “organs of state IN [or, in the language of s 41(1), WITHIN] the national, provincial or local sphere of government”, which has been defined in s 40(1), and, remember, s 41(1) applies only to those “organs of state” – clearly EXCLUDING the NPA.
Now, why the (b) part? In another post above you quote s 165(3) “No person or ORGAN OF STATE [under the (a) or (b) parts of the definition, since no requirement that the organ os state must be within the the relevant sphere of government] may interfere with the functioning of the courts.”
Now everything becomes clear, doesn’t it? S 41(1) does not apply to the NPA.
Good enough?
OH! dear. Funnily enough I disagree with most of what you have written, but luckily it is not necessary to go through it piece by piece. The end is very much in sight.
At least we progressed far enough to admit that s.239 is relevant. Since it was I who first raised it in this thread / / Dec 9, 2008 @8:07 pm you are safe in assuming I have read it, yes.
But did you not read chris’ contribution? // Dec 10, 2008 @4.20 pm
He gives Concourt authority (I have not read it but it seems to me to be trite law) that the NPA forms part of the executive branch, ergo it must be “within [the national sphere of government]”
That, it seems to me, conclusively rebuts everything you have written about the NPA and s.41(1).
Am I right?
I have been reading this blog for some time now. I enjoy and respect Pierre’s pieces – even if I don’t always agree with them. They are well thought through, very topical and never boring. There are also some interesting commentators on this site.
But it has lately become intolerable to read through the comments. Two trolls in particular are determined to direct their vitriol at the Profesor and fellow commentators, nitpicking over irrelevant detail, refusing to ever be swayed from their hidebound and predictable positions and intent on derailing any conversation toward themselves.
I understand Pierre might not want to interfere with these trolls’ “freedom of speech” but this is a degree of tolerance I haven’t seen practised by any of the other bloggers I read. It makes the whole blog unpleasant. It’s like tolerating a screaming couple during a symphony concert.
I’m not suggesting that dissenting views are bad – on the contrary, they make things interesting. But the deliberate inciting of flame wars by pompous attention seekers with too much time on their hands is not that – it is just obnoxious.
Please Pierre – relegate these trolls to the dungeon where they belong.
Tim
I could not have said it better! But I am afraid we need to realise that those you are referring to make out most of our “leaders” and it is therefore accepted amongst them as “pure thinking”. Shamefully so but true nonetheless!
Anomymouse,
I truly admire your tenacity. I can see you slowly disappearing a thick bush of words whose meaning evade our sharp eyes.
Pikoli is on organ of state, the NPA is an organ of state, Mbeki was an organ of the state, Mabandla was too an organ of the state. They had to co-operate in discharging their functions without shoving one another out of their constitutional and statutory boundaries.
They are bound to co-operate but certainly Mabandla and Mbeki were not empowered by any legislation to instruct Pikoli about withdrawing an arrest warrant. it did happen to Mpshe though!
He lamely did (Mpshe), he impugned the independence of the NPA by following the whims of the President.
The neither the Constitution nor the relevant legislation excludes the NPA from the provisions of chapter 3. Why fear the concept of co-operation not interference for language’s sake! Does reporting to the minister involve the withering away of independence! Come on guys.
It does not. The minister cannot abrogate the role and function of the NNDP to herself or himself. This is trenching upon the principle of functional independence.
So I believe that the final responsibility of the minister does not entail instructing the NPA who to charge or not charge. Please when we argue this point leave the judiciary alone. It is not a point of deliberation! I do agree that the Constitution sought to ensure independence of the NPA, but accoutability is another matter.
Reporting of activities is not a favour or paucity of fearlessness. This is done to safewguard (not to prejudice) national security. This fosters accoutability for actions taken by the NPA.
We have a moral duty to educate one another. I think Prof must sum up this discussion and infuse some unigue content to justify any final perpective. I think I agree with DGMS on this point.
Lets put the matter to rest. I learnt what a organ of state is, it includes any person exercising public power or duty. Ginwala was an organ of state when she was conducting the Inquiry!
It is this sort of reasoning that decided Escom should not be upgraded 10 years ago, beetroot cures Aids, Zim has no problems, the arms deal was all kosher, BEE should be limited to a few, etc etc
Tim // Dec 10, 2008 at 6:40 pm
You need to be aware that Pierre has long declared that this blog that he runs is as much about him, as the chief writer, as it is about all the bloggers, that contribute to make it a vibrant as it is.
I find it quite unfortunate that you choose to use your, I believe, first contribution to this blog to label some contributors using derogatory names that equate to demons and ogres. We addressed this matter earlier today and I think consensus was reached that it is not productive.
I, would, however like to assure you, that as much as many contributors here, including the writer, are as you say ‘refusing to ever be swayed from their hidebound and predictable positions’, many times consensus has actually been reached. As I write donotgetmestarted and Anonymouse seem to be heading in that direction. And as many times, consensus has also been relinquished.
Believe me, many times I had decided to abandon this blog and possible start my own. But there is a community here that, in as much as I think some of the views are pompous delicacies, I find solace in the education that I find here. And also in the conditioning of me as, as a person, to understand other people views.
So instead of watching from the sideline, I believe I will be speaking for everyone, if I say – let us hear your point of view!
A colleague of mine Mahlatse Matlala is launching a jazz CD at Meropa Casino. I think some dancing and meditating can do after such a hard slog. Bye for now
Tim and AB please resolve the stalemate. I will suggest to PDGS to concede since we have been sparring partners in this difficult constitutional debate. For the sake of closure!
Khosi, I could not see you blog when a posted. You can say that again . Tim seems a very thoughful character. Rush into the lion’s dan brother, like a raging bull and correct all wrong bloggers!
@ Tim // Dec 10, 2008 at 6:40 pm
It’s funny you should say that, because I was going to remark to Anonymouse that we sound like two old hens arguing about an addled egg.
On the other hand, this is a constitutional law blog, and one of the burning topics of the day is cooperative government. Even PdV (although I strongly disagree with him) considers it is not clear where the NPA fits in the scheme of cooperative government.
It’s a topic very worth discussing, and it does now seem to be progressing in an informative and unvitriolic way.
From time to time (and I have confessed my part in it) many people express themselves inappropriately. That isn’t trolling or flame wars. It’s the product of frustration in trying to get across one’s point of view to someone who cannot see what you are on about.
Luckily, we had Ishmael to recall us to the common decencies, and good order has been restored. I agree the topic cannot drag on and on, but now seems to me not to be the right time to call “time”.
Tim, I understand your concern but I am still committed to freedom of expression. I have decided not to respond to bloggers who suck the air out of the discussion and appeal to others to do the same. They seek attention and if one denies them that attention, they will hopefully pipe down.
Pierre
I wish I could share your deep rooted optimism wrt those people piping down, but good on you for allowing them to carry on and make us realise that our society is VERY diverse!
Ishmael Malale // Dec 10, 2008 at 6:53 pm
I have argued this issue of national security for the past year now. Words, or English, have/has failed me and I have not been able to make either Pierre or Mouse congenial to this need when a NDPP arrest a National Commissioner of the Police. But that is my failure.
I, over the past two days, watched as yourself and dontgetmestarted painstakingly tried to sway the two gentlemen to this reality. I must say, to both yours and DGMS credit, it is a moving mountain.
I think the biggest obstacle here, is your advisories, over liberal reading of both the constitution and the NPA Act. If you can deal with that pretext on their part, you will succeed.
Good Luck,
Yeah, no more replying to those who suck the air out of the discussion. I’m interested in what Prof de Vos has to say, because he’s an expert. I’m not suggesting that we sit and nod our heads, but then, nothing that the Prof has said suggested this.
As a rough guide, please have a look at this before you post any more replies:
http://johntreed.com/debate.html
No more mudslinging, please. Just go behind the bike shed, give each other a bloody nose, shake hands and laugh it off over a beer. Then get back to discussion the constitution in an intellectually honest debate. This is not a pissing contest.
If anyone could enlighten me why the NPA should not have independence, please go ahead. I don’t have legal training, but the mere structure of the Constitution from a critical writing perspective seems to suggest that Chapter 3 deals with a description of the interdependent organs of government in an introductory manner, while Chapter 4, 5 and 6 deal with each broad category of interdependent organs of government and its functions respectively. I don’t see why the NPA, which clearly and unambiguously falls under the judiciary (Chapter 8), should be subservient to these clauses.
The riddle remains: Pikoli did nothing wrong. Then, whoever suspended him, did do something wrong. But they apparently didn’t do anything wrong either. In other words, it was OK to suspend Pikoli without any valid reason.. why, exactly?
Sticking with Nietzsche: “No price is too high to pay for the privilege of owning yourself.”
Ach Herregut! Grossen Cthulhu! Pikoli ist ein Ubermensch!
dontgetmestarted -
>But did you not read chris’ contribution? // Dec 10, 2008 @4.20 pm
He gives Concourt authority (I have not read it but it seems to me to be trite law) that the NPA forms part of the executive branch, ergo it must be “within [the national sphere of government]”
That, it seems to me, conclusively rebuts everything you have written about the NPA and s.41(1).
Am I right?Two trolls in particular are determined to direct their vitriol at the Profesor and fellow commentators, nitpicking over irrelevant detail, refusing to ever be swayed from their hidebound and predictable positions and intent on derailing any conversation toward themselves.<
I think dongetmestarted and Khosi, you fit that comment best, and Ishmael, you came in late here, but you, and had he participated here at all, also lindelani, might have fit that comment.
Yeees,… now you all have a good night.
I thank you Anonymouse for giving us mantles of digression and fixation with attention in discourse. I certainly do not have to challenge your analysis.
I will sink into observer’s status for a while and indulge in self-introspection on your suggestion.
Garb NPA is now part of the judiciary as you want us believe. I must accept that you hold that point so dearly and say good luck. I pledge to undertake further research on the topic for my personal clarity. I valued entire the exchange, it has sharpened me.
I have on particular days chosen to be the devil’s advocate to my own misfortune of being branded as an attention seeker by some bloggers.
Good night anonymouse and other bloggers!
Before accusations of swaying debates towards myself engulf me I wish to direct bloggers to the CC judgment alluded to by Chris Minister of Defence v Potsane at paragraph 25. Kriegler observes that :
” With regard to the possibility of conflict between the civilian and military prosecuting authorities by reason of their concurrent jurisdiction over offences committed by soldiers within the country, there is no direct answer to be found in the Constitution or the Act. But this potential has not arisen because of the adoption of either. It has existed for as long as there was this co-extensive jurisdiction, i.e. at least since the coming into operation of the current Defence Act and Criminal Procedure Act. Dr D’Oliveira informed the Court that there has to his knowledge always been liaison and cooperation between the civilian and military police services and the respective prosecuting agencies. Depending on the nature and circumstances of the case, the one defers to the other. Since the advent of the Constitution this would not only be sensible administrative cooperation between kindred government agencies, but would be an obligation by reason of the principles of cooperative government demanded by chapter 3 of the Constitution. The history of cooperation is hardly surprising. The interests of the two sides would at all times largely correspond notwithstanding that the one exists to combat and prosecute crime while the other aims primarily at maintaining military discipline.”
The Constitutional Court seems to observe that co-operative governance chapter applies to the NPA/NDPP.
In the same judgment it is stated that ” the NDPP is part of the executive branch og government, not the judiciary…”
I hope this will help the debate. thank you Prof, DGMS and other bloggers. I can sleep now knowing that I am not a useless attention seeker.
Para 37 of judgment mentioned above states:
“The NDPP is part of the executive branch of government, to the judiciary”
This is the constitutional jurisprudence!
“to” be replaced “not”
Ishmael Malale // Dec 11, 2008 at 12:09 am
Do not be hurt by people labeling you. I, for my part, do no think that you are an attention seeker. I think that the labels that seem to have tore the underbelly of your consciousness are accurate in describing you. However, it’s not befitting.
But that said, you are a politician and attention seeking is not a concept that you should treat like a plague.
I am developing a hard crocidile skin every debating moment. I appreciate your encouraging words, Khosi.
The clear message is that one should say less and not be overbearing in one’s contribution. Eschew insults.I appreciate the debating rules and hope that they are well fathomed.
I rest my case.
From the start of my brief sojourn here, a few bloggers – most of whom have not contributed one iota to the actual issues – have attacked my style and vocabulary. That is entry-level argumentum ad hominem (playing the man, not the ball). It is inert. If you think the A ad H is valid, nothing anyone can say is likely to assist you to mature in your thought processes.
I have seen bloggers – who have not contributed to the actual issues – attack others (who have engaged with the intellectual arguments) for being attention-seekers with too much time on their hands. This is a variation on the A ad H. That is your prerogative, to be bored or exasperated. You can scroll forward.
I have seen bloggers – who have not contributed to the actual issues – complain (on a blog dedicated to constitutional law) that an extended discussion about how the National Prosecuting Authority and the executive arm of Government should inter-act with each other, and how chapter 3 of the Constitution fits in to the debate, is nit-picking. This too is a variation on the A ad H. It appeals to those who cannot stomach detailed argument. You already have the print and TV media for encapsulated discussions. Serious debate admits no word quota.
Then I have seen arguments from people who have neither the time, skills or inclination properly to engage with criticism. When brought up against the ineluctable logic of their own positions or after being confronted by an unanswerable objection, or when challenged to justify a statement of fact or law, they abruptly abandon the debate. That is being intellectually dishonest.
On the immediate topic, an argument that the National Director of Public Prosecutions is not within the national sphere of government will NEVER fly.
Have a nice democracy!
@Ishmael:
Thanks for that. It does appear that this could be reasoned both ways. Especially with regards to the following:
“Dr D’Oliveira informed the Court that there has to his knowledge always been liaison and cooperation between the civilian and military police services and the respective prosecuting agencies. Depending on the nature and circumstances of the case, the one defers to the other.”
It seems that the Constitution is not clear on this issue. It makes sense in terms of independence and guaranteeing freedom from fear and prejudice to have the NPA as an independent body, as per Chapter 8 and 9(?). However, the NPA also has to be safeguarded and the president needs the opportunity to act in national security (however you want to define that red herring).
Let’s not lose sight of the case at hand in favour of Constitutional nitpicking. In Pikoli’s case, he did in fact report to the minister and the president about his findings regarding Selebi. He did in fact pay mind to their recommendations. There is nothing to suggest that Pikoli went out on a limb and maliciously decided to prosecute Selebi without co-operating or consulting with the other organs of state. If the reports are accurate, Thabo Mbeki said give it a week or two. Mbeki did not try to intervene, apparently. He did not try to have the warrant for arrest withdrawn at that stage. The reason for Pikoli’s suspension given was the breakdown of Pikoli’s relationship with the justice minister.
The Ginwala Commission found that there were no valid reasons to suspend Pikoli, yet the president did nothing wrong to suspend Pikoli. It appears to me that whichever way you want to cut the cake that Pikoli did adhere to the Constitutional requirements of his position. If you believe that it involves co-operating with and reporting to the other organs of state – Pikoli did that. If you believe that he can act independently, but not secretly, without fear or favour or prejudice, against those who had mounting evidence against them – Pikoli did exactly that too.
There’s obviously a cover-up. One by one, the ANC finds its cronies in the pickle. When Shabir Sheik went to prison, the rest of the bigshots hoped and prayed that it would be the end of the arms deal saga. Then, Zuma and Selebi got fingered. Now, it appears that the rest of them are hoping that either (or both) of them stop passing the buck and take one for the team.
A lot of progress registered. I respect your viewpoint. I have reviewed the blog and we have a vast area of agreement. you are such a good debater. Keep the good work Garb!
I have turned into a praise singer !
Ishmael Malale // Dec 11, 2008 at 12:09 am
………………………………………………………………………….
Part 1
Unfortunately my post of 8:44 pm above was shortened or moderated and does not include my initial arguments on the case of Potsane and its effect on the interpretation of the relevant secions. My initial recollection was that, even though Kriegler J might have implied that the NPA is an “organ of state” that is subject to Chapter 3 of the Constitution, and that it is part of the “executive arm of government”, and not the judiciary, the CC has never been asked to interpret the position of the NPA vis-a-vis the legislature or executive in the light of the definition of “organ of state” in s 239, read with ss 40 and 41 of the Constitution. Now, after having re-read the Potsane decision, my suspicions have been confirmed.
In Potsane, Kriegler was at great pains to save the provisions in the National Defence legislation providing for a separate prosecuting authority in the Military sphere despite s 179 of the Constitution providing for a “single” prosecuting authority for the Republic. Eventually he found that s 179 did not place the Military Prosecuting Authority under control of the NPA, as argued was the case in the light of s 179, because of a number of reasons – e.g., military tribunals (and, therefore, their policing and prosecuting agencies) may exercise jurisdiction extraterritorially, while national courts (and, therefore, the SAPS and the NPA) may only exercise jurisdiction territorially; soldiers under the military have a life that is quite different than the life of civilians, and there is therefore good reason that military personnel should, where possible, be dealt with in military courts, rather than in civilian courts; military ‘discipline’ is something different than the ‘discipline’ meted out by civilian courts; etc.
It was during the course of this judgment (in para [25]) that Kriegler J observed that Dr Jan D’Oliveira argued that, “to his knowledge”, there has always been liaison and cooperation between the civilian and military police services and the respective prosecuting agencies. It is in this light that Kriegler J made the obiter remark quoted above. This, I must stress, is nothing but an obiter remark, and it has nothing to do with the real ratio of the court in deciding the issue. It is therefore not “trite law” as suggested by dontgetmestarted above.
Similarly, the remark of the NPA being part of the “executive arm of government” (in para [37]) was made to stress the point that the NPA was not apointed to oversee the Milirtary prosecuting agency, because if such overseeing function was necessary, the court would have expected the judiciary to have been given that function, and not the NPA as part of the executive arm of government. This also does not impact on my interpretation of s 41(1) above, and which I will quickly repeat in Part 2 below, since I have never said that the NPA is equal to a court for its inclusion in Chapter 8, but only that its inclusion under Chapter 8 is telling of the fact that the NPA should be regarded as independent from other organs of state.
Nowhere in Potsane has Kriegler J (writing for the Court) been asked, neither has he attempted, to interpret the true meaning of ss 40, 41 and 239 of the Constitution. The facts of Potsane are also quite different than the facts at hand. There it was about whether there could be two prosecuting authorities instead of one, in which case it would have been a good thing had the two prosecuting authorities been liaising and cooperating. Here we have the question whether the NA is obliged to liaise with the excutive arm of government to properly fullfil its functions. Had the latter facts been presented to the court, and had proper argument been made on ss 40, 41, 179, 239, I’m quite sure the court would have come to a different conclusion altogether.
Continued in Part 2
Part 2
I have now had the opportunity to quickly scan the further contributions by garg Unzola and dontgetmestarted above – and I have noticed that my contribution of 8:44 pm yesterday is not yet complete. However, I’ll again, slowly this time, go through my arguments (already submitted at 6:03 pm above) in this regard to show that it is in fact logical to infer that Chapter 3 of the Coonstitution does not apply to the relationship between the NPA, the Minister and the President (executive).
Firstly, s 239 has an (a) and a (b) part of the definition of “organ of state”. The (a) part refers to “organs of state” IN the national, provincial or local spheres of government, which are provided for in Chapters 4, 5, 6 and 7 of the Constitution. Such organs of state can only be “any department or administration” in the mentioned spheres of government, and it would be very difficult to classify the NPA as a “department” of any of the mentioned spheres of government, which it is not, or as an “administration” (provided for in Chapter 10 – the “Public Service Commission” and the “Public Service” in relation to the national, provincial and local spheres of government).
Secondly, the ordinary meaning of the words in Chapter 3 on “Co-operative Government”, imply that Chapter 3 is only applicable to the spheres of government described in Chapters 4, 5, 6 and 7. S 40(1) reads: “In the Republic, government is constituted as national, provincial and local spheres of government which are distinctive, independent and interrelated.” S 41(1) starts with “All spheres of government and all organs of state WITHIN each sphere must -” Note the convergence with the (a) part of the definition of “organ of state” in s 239.
The (b) part of the definition of “organ of state” provides for all other “‘organs of state” that are not operating WITHIN one of the spheres of government provided for in Chapters 4, 5, 6 and 7 (and, therefore, Chapter 3) of the Constitution. [Aside and in passing one may remark here that it would be easier to classify the NDPP and the NPA as "any other functionary or institution" as in the (b) part of the definition, than what it is to classify it as a "department or administration" in the (a) part of the definition above.]
Quite clearly, the NPA (provided for in Chapter 8), the State Institutions Supporting Constitutional democracy (provided for in Chapter 9), the SANDF [including the military law structure which was the focus of attention in the Potsane matter], SAPS and Intelligence agencies (provided for in Chapter 11), are all, to an extent, related to the national executive, but, from their very nature, they cannot and should not be “WITHIN” the national executive. Were they to be WITHIN the national executive, the President or relevant Minister would be able to prescribe to these “‘organs of state” what to do and what not to do. In other words, had that been the case, the President or the Minister could very well instruct the NPA to prosecute someone within its ranks, quite contrary to the requirements of Chapter 3, as is alleged has been done in the Zuma prosecution; or, to instruct the NPA not to prosecute someone within its ranks (or another organ of state), as is alleged by some has been done in the Selebi prosecution. It would be possible for the Minister of defence to instruct the military prosecuting agency not to prosecute a prominent General in the defence force for having committed a serious crime such as murder or corruption. It would be possible for the Minister of safety and Security to instruct the SAPS to arrest certain people and to leave others be, even though they have committed serious crimes. It would be possible for the relevant member to instruct the intelligence services to “spy” on certain people within its own ranks. Etc, etc, etc.
Quite clearly, this is not what is intended in the relevant Chapters of the Constitution, and the other “organs of state” have been created and provided for in different chapters of the Constitution than those creating and providing for the national, provincial and local spheres of government.
This is the only reason there can be for differing between two classes of “organ of state” in s 239. What other reason could there be? I cannot find any, and, dontgetmestarted, Ishmael malale and others, I dare you to find any.
See also s 238 – clearly it relates to an “executive organ of state IN any sphere [national, provincial, local] of government” that can delegate any of its functiopns to another “executive organ of state” or may render functions on behalf of another “executive organ of state” on an agency or delegation basis. An example is offices of the Department of Justice doing agency word on behalf of internal affairs (marriages, birth registrations, ID applications, etc) or SARS (receiving revenue payments). Clearly the NPA cannot be regarded as such an “executive organ of state”, otherwise it would be able to delegate its prosecuting authority to members of SAPS, or whomever.
On the other hand, s 165(3), quoted somewhere above by dontgetmestarted, does not, like Chapter 3, exclude one part of the definition of “‘organ of state” in s 239. It reads “No person or organ of state may interfere with the functioning of the courts.” Note that “organ of state” in this provision is not qualified by the words “WITHIN EACH SPHERE OF GOVERNMENT” as in s 41(1). Neither is it qualified as an “executive organ of state”‘ as in s 238. Therefore, all persons (doesn’t matter who) and all “organs of state” defined in both the (a) and (b) parts of the definition in s 239 may not interfere with the functioning of the courts. Not the President, not a Minister, not a state department, not a member of the NPA, not SAPS, not the military, not even the Public Protector, may interfere with the functioning of the courts. Why is the wording iin s 165(3) different from the wording in s 41(1)? Surely that cannot be without consequence.
Lastly, the power to institute and conduct criminal proceedings on behalf of the state “vests in” the prosecuting authority – see s 20(1) of the NPA Act 32 of 1998. Contrast, however, Kriegler J’s reasoning in para [28] of the Potsane judgment [>The words used to vest exclusive authority in the legislature, the executive and, the judiciary are: “is vested in”. The words used in section 179 are different and more consistent with a concern to centralise the national public prosecuting service, rather than to transfer the authority for military prosecutions to the NDPP.<] , which gives all the more reason to believe that the Potsane judgment on the status of the NPA as “organ of state” cannot be reggarded as “trite law”.
Thanks Anonymouse.
No person or organ of state may interfere with the functioning of the courts.
Which makes sense in that context, because surely you don’t want Pikoli to say: “Judge, I’m sure you look sober today. I guess Selebi will be guilty, hey? How about it?”
That would also explain why Judge Hlophe is in a bit of a fix because he allegedly told high court judges that: “Judges, you look sober today. Surely, if you care about your futures as high court judges, Zuma is innocent, hey? How about it? Should I slip you a fifty?”.
Also, thanks Ishmael. We can differ from each other without resorting to name calling. Thanks for agreeing to disagree respectfully.
Thanks Garg, though I have seen that you are sometimes called “Garb”; but, don’t take offence, take it as indicative of the intelligence or morality of those who cannot spell your name (or pseudonymn) correctly. I hope my exopsition above, over various attempts and posts, makes sense to those who logically try to “pluis dinge uit”, like you of course.
Now. its good night again from me.
As a layman in matters legal, I ask any legal eagle in here what are the chances of ID succeeded in getting Mabandla charged and/or convicted.
http://www.sowetan.co.za/News/Article.aspx?id=903536
@Anonymouse
@Garg Unzola
Thank you very much I rest my case
(”In Pikoli’s case, he did in fact report to the minister and the president about his findings regarding Selebi.”)
Yes he did!
(”He did in fact pay mind to their recommendations.”)
Amen to that! ummm hmmm
(There is nothing to suggest that Pikoli went out on a limb and maliciously decided to prosecute Selebi without co-operating or consulting with the other organs of state.)
Can I hear a hallelujah.
Simply put he did nothing worng
Minister of Defence v Potsane and Anonymouse simply couldnt have said things any better than what you have so elegantly concluded to and why I made Reference to Minister of Defence v Potsane and why dontgetmestarted made the mistake of not reading the case
“expressed the opinion that the NPA forms part
of the executive branch of government” its an opinion not concrete proof
it
nevertheless enjoys a unique measure of independence from the executive. reason for this is to avoid political interference and undermining JUstice
(but only that its inclusion under Chapter 8 is telling of the fact that the NPA should be regarded as independent from other organs of state.)
(”Quite clearly, the NPA (provided for in Chapter 8), the State Institutions Supporting Constitutional democracy (provided for in Chapter 9), the SANDF [including the military law structure which was the focus of attention in the Potsane matter], SAPS and Intelligence agencies (provided for in Chapter 11), are all, to an extent, related to the national executive, but, from their very nature, they cannot and should not be “WITHIN” the national executive.”)
(Therefore, all persons (doesn’t matter who) and all “organs of state” defined in both the (a) and (b) parts of the definition in s 239 may not interfere with the functioning of the courts.)
Booyakkasha!!!!!!!
(Clearly the NPA cannot be regarded as such an “executive organ of state”, otherwise it would be able to delegate its prosecuting authority to members of SAPS, or whomever.)
it is of the opinion that it is, rightly so but it is a independent body.
(Lastly, the power to institute and conduct criminal proceedings on behalf of the state “vests in” the prosecuting authority – see s 20(1) of the NPA Act 32 of 1998. Contrast, however, Kriegler J’s reasoning in para [28] of the Potsane judgment [>The words used to vest exclusive authority in the legislature, the executive and, the judiciary are: “is vested in”. The words used in section 179 are different and more consistent with a concern to centralise the national public prosecuting service, rather than to transfer the authority for military prosecutions to the NDPP.<] , which gives all the more reason to believe that the Potsane judgment on the status of the NPA as “organ of state” cannot be reggarded as “trite law”.)
I stand up and applaid u Anonymouse for actually doing research intothis case.
Dontgetmestarted and ishmael simply put you got served.
Under Article 9(2) of the UN since South Africa is a member of the UN and it is one of the rules of the UN that such bodies like the NPA remain independent
South Africa has signed and ratified both of the most significant international
treaties intended to combat corruption, viz. the United Nations Convention
Against Corruption (2003) and the African Union Convention on Preventing and
Combating Corruption (2003), as well as the United Nations Convention Against
Transnational Organised Crime (2003).
3
6. All these treaties enjoy a high level of international support and commitment and,
hence, credibility. All three require the establishment of specialised anticorruption
agencies that must be characterised by independence.
Not only is the NPA backed up by our constitution to be independent but it is a mandate by the UN that such bodies are and remain independent
Article 36 of the UN Convention Against Corruption provides:
Each State Party shall, in accordance with the fundamental principles of its legal
system, ensure the existence of a body or bodies or persons specialized in
combating corruption through law enforcement. Such body or bodies or persons
shall be granted the necessary independence, in accordance with the
fundamental principles of the legal system of the State Party, to be able to carry
out their functions effectively and without any undue influence. Such persons
or staff of such body or bodies should have the appropriate training and
resources to carry out their tasks.’ (Emphasis added)
Article 5(3) of the AU Convention provides that states parties undertake to:
‘Establish, maintain and strengthen independent national anti-corruption
authorities or agencies.’ (Emphasis added)
Article 9(2) of the UN Convention Against Transnational Organised Crime,
which DGMS and Ishmael have clealy ignored
Thats why the disbanding of the scorpions was illegal and thats why Pikoli is clear of any wrong or any national threat to south africa.
Somehow, Anonymouse and chris have convinced themselves that Judge Kriegler’s view (that the NPA falls within the executive arm of government) is of marginal relevance because obiter.
You are welcome to entertain so supercilious a view of his learning.
In the Certification Case, the Concourt held – and this is indubitably not obiter – that the NPA is not within the judiciary [Case 23/96, para.141]. So where, within the “national sphere of government” do you locate the NPA?
Or are you saying the NPA is not within any of the spheres of government (national, provincial or local) and not within any of the pillars of government (executive, legislative and judiciary)?
Khosi, don’t you find it strange all the backslapping going on between Anonymouse and Garg Unzola. Case of the Rat has got the Cheese? Are they one and the same, or just unfortunately allocated pseudonyms?
Anyone know if Pikoli is going to Appeal? The Mvelaphanda offer has been on the table for a while I believe. But I agree with Khosi, Vusi should Appeal, win and then resign.
dontgetmestarted – >Or are you saying the NPA is not within any of the spheres of government (national, provincial or local) and not within any of the pillars of government (executive, legislative and judiciary)?<
That is exactly what I am saying. The only way it can be independent is if it is regarded as one of the “organs of state” intended in the (b) part of the definition of “organ of state”‘ in s 239. The (a) part of the definition is intended to include “organs of state” within the spheres of government (national, provincial, or local) – that are all subject to Chapter 3.
Furthermore, even though the NPA, like the SAPS, the SANDF, the Public Protector, the Human Rights Commission, and the likes, are “employed” by the executive branch (pillar, if you like) of government, there is good reason to keep it independent from ANY interference by the executive (or, for that matter, the legislature) and subject only to the Constitution and the law, which is of course guarded and adjudicated upon by the judiciary. Therefore, the NPA is not “WITHIN” the executive, even though it is one of its agencies designed to uphold the law, especially criminal law, of this country. It is definitely also not WITHIN the legislature or the judiciary, even though the latter would not be able to function as criminal courts in the absence of the NPA.
And that is the rerason why co-operative government provisions cannot be applied to it, because, had it been applicable, the NPA would have been enjoined by s 41(1)(h) to “co-operate within mutual trust and good faith by … (v) adhering to agreed procedures; and (vi) avoiding legal proceedings against [the executive and the legislature in all spheres of government, national, provincial and local]“.
Can you see? If s 41(1) were applicable to the NPA, it would not only have meant that it must i.t.o. s 41(1)(h)(iii) and (iv) have been enjoined to inform the other organs of state and shperess of government on matters of common interest and to coordinate its actions (and legislation, nogal!) with them, but it would also be enjoined to avoid legal proceedings against any ogf them. So, if a Municipality botches up, commits “murder” or “culpable homicide”, the NPA must avoid legal proceedings against it because of this principle in s 41(1)?! Nonsense!! If a Minister (or a Deputy President) commits a crime, then the NPA would be supposed to avoid legal proceedings against such a person!? Nonsense!!
The only way such a nonsensical situation can be avoided is if the NPA is not regarded as being governed by Chapter 3. The only pillar of government that the NPA has to co-operate with in a certain sense is the judiciary, and it will of course be subject to the laws passed by the legislature. But co-operation with the executive or the legislature in the true sense of the word in s 41(1) is a NO-NO.
Hope this makes sense.
@Mdu:
Questioning motives is a classic logical fallacy. Please, deal with facts and logic. This is a rough guide on having an intellectually honest debate:
http://johntreed.com/debate.html
I have a question for those with legal training: what exactly constitutes national security and how is it protected from a legal perspective? As far as I’m concerned, having an armed and trained citizenry takes care of national security. Just curious how valid the national security excuse is for firing someone who did nothing wrong.
Dear Anonymouse // Dec 11, 2008 @12.46 pm (Part 2),
You say that limb (a) of s.239 shows a convergence with (and therefore responds to) s.41(1); and because the NPA falls at best under limb (b) it is thereby excluded from s.41(1). That is your primary argument, I think.
The President of the Republic falls under limb (b)(i) NOT limb (a), and (s)he is unarguably comprehended in s.41(1). So you have to abandon your limb (b) point. It just won’t fly.
If the NPA is an organ of state within the meaning of s.239 (under whichever limb) then it is covered by s.41(1) unless you can demonstrate the NPA is not within the national sphere of government or that s.41(1) is not intra-spherical.
So far as I am concerned, if Kriegler J opined that the NPA forms part of the executive (as he did), and if Concourt decided that the NPA is not part of the judiciary (as it did), then that is good enough for me.
Frankly, the whole chapter 3 “interpretation” argument is overdone because the principle of cooperative government and the other laudable home truths listed in s.41(1) are implied where not expressed. That is why Trengrove didn’t take the chapter 3 argument on behalf of Pikoli.
Not all the behaviour-sets listed in that sub-section fit the NPA/NDPP like a glove, but when one size fits all, cramps often result.
On s.41(1)(h)(vi), organs of state are enjoined to “avoid legal proceedings”. Sub-sections (3) and (4), as well as s.167(4)(a) assume the Courts will be involved from time to time – although these do not envisage criminal prosecutions, I grant. In the case of the NPA, s.41(1) is necessarily overridden by s.179.
Have a nice night!
Well, let’s see what 239 of the Constitution actually says:
239. Definitions
In the Constitution, unless the context indicates otherwise
“national legislation” includes
1. subordinate legislation made in terms of an Act of Parliament; and
2. legislation that was in force when the Constitution took effect and that is administered by the national government;
“organ of state” means
1. any department of state or administration in the national, provincial or local sphere of government; or
2. any other functionary or institution
1. exercising a power or performing a function in terms of the Constitution or a provincial constitution; or
2. exercising a public power or performing a public function in terms of any legislation,
but does not include a court or a judicial officer;
Does the prosecuting authority fall under the judiciary? If so, could the positions of NDPP and a DPA be described as judicial officers?
Why would the NDPP and DPA be described under Chapter 8 (courts and administration of justice) if they are merely organs of state? Why would the courts and judicial officers be explicitly excluded from s239? If they were part of the spheres of government, why aren’t they described in the parts of the constitution that does in fact describe the spheres of government?
Whoever wrote this Constitution did a duct tape job if they would have us believe that the courts are merely organs of the state, or part of the spheres of government. because it doesn’t seem to me that it is constitutional to claim so at all.
Someone has asked:-
“Does the prosecuting authority fall under the judiciary? If so, could the positions of NDPP and a DPA be described as judicial officers?”
The NPA is not part of the judiciary. The Constitutional Court decided that as long ago as 1996.
Just try and assimilate that and the argument might start moving through the alimentary canal.
Well, that’s irregular and peculiar, because the NPA only came into being with the National Prosecuting Authority Act 32 of 1998.
This act, which you may peruse at your leisure, clearly stipulates that the NPA is constitutionally governed by Section 179 of the 1996 Constitution of the Republic of South Africa. This section falls within Chapter 8, namely Courts and Administration of Justice.
Immediately before and immediately following Section 179 are sections describing the functions of judicial officers. Coincidence?
Like Groucho Marx would say, a child of 5 would understand it. Someone fetch me a child of 5!
Viewed from the standpoint of anything that is pertinent, you are most severely out of your depth. The status and role of the NPA arises from the Constitution, as you appear to know. The adjudication by Concourt was in the first Certification case decided in September 1996.
Since you are incapable of recognising Concourt authority, there is nothing further to be said.
Your latest impertinences masquerading as rebukes do nothing to enliven the chaotic messes you deposit here.
dontgetmestarted – >The President of the Republic falls under limb (b)(i) NOT limb (a), and (s)he is unarguably comprehended in s.41(1). So you have to abandon your limb (b) point. It just won’t fly.So far as I am concerned, if Kriegler J opined that the NPA forms part of the executive (as he did), and if Concourt decided that the NPA is not part of the judiciary (as it did), then that is good enough for me. <
It would appear as if you do not understand the difference in rationes dicedendi and obiter dicta in judgments as far as their respective roles in the system of stare decisis is concerned. The former constitutes binding precedent from which a court and lower courts cannot deviate, unless the earlier judgment had been given per incuriam or a court of an equal or higher status than the one that gave the judgment in the first place is convinced upon good argument, that the earlier judgment was wrong in law, and decides to overule it. The latter is usualy regarded by higher, equal or lower courts as of persuasive force only; but, when sound argument can be made that the remark should not have been made or, in the light of new arguments is not the entirely correct exposition of the law in all similar cases, then even a lower court is not bound and may substitute its own judment in its place. Kriegler J’s remarks in this regard clearly form part of the latter category of judgment, and I dont think that, even he, had he still been part of the CC, would in the light of the current scenario uphold his earlier judgment in this regard. Therefore, once again, I think that my arguments above might just “fly”.
dontgetmestarted -
>On s.41(1)(h)(vi), organs of state are enjoined to “avoid legal proceedings”. Sub-sections (3) and (4), as well as s.167(4)(a) assume the Courts will be involved from time to time – although these do not envisage criminal prosecutions, I grant.In the case of the NPA, s.41(1) is necessarily overridden by s.179.Not all the behaviour-sets listed in that sub-section fit the NPA/NDPP like a glove, but when one size fits all, cramps often result. That is why Trengrove didn’t take the chapter 3 argument on behalf of Pikoli.<
I trust you have authority to base this assertion on? Are you, he?
dontgetmestarted – Oh dear I have just discovered that if I use the arrows for quotation marks, all of my points between the first < and the last < go missing in the posting thereof. Sorry, many of my arguments therefore went missing. Unfortunately I don’t have the time, patience nor virtue to repeat all.
Therefore, the last part of my first post in response to your argument relates only to the following quote from your post: ” So far as I am concerned, if Kriegler J opined that the NPA forms part of the executive (as he did), and if Concourt decided that the NPA is not part of the judiciary (as it did), then that is good enough for me.” The earlier part of the quote, “The President of the Republic falls under limb (b)(i) NOT limb (a), and (s)he is unarguably comprehended in s.41(1). So you have to abandon your limb (b) point. It just won’t fly.” attracted an argument something like, since the President and Cabinet Ministers already form the “national sphere of government”, they need not be regarded as “organs of state” for purposes of s 41(1) as well. To my mind, “spheres of government” include all the members of the legislating and executive authorities at the national, provincial and local levels. Therefore, “organs of state within each sphere [of government ]” in s 41(1) refer only to departments and admnistrations (including employees of same) within those spheres, in other words, those falling within limb (a) of the definition in s 239. E.g., the Department of Justice and Constitutional Development, and all its employees, from the Director-General right down to the lowest salaried employee in that department falls within the sphere of government of the President (9as head of the national excecutive) and the Minister of Justice and Constitutional Development.
As far as my, incomplete, second post above is concerned, I will break it up as follows.
“On s.41(1)(h)(vi), organs of state are enjoined to “avoid legal proceedings”. Sub-sections (3) and (4), as well as s.167(4)(a) assume the Courts will be involved from time to time – although these do not envisage criminal prosecutions, I grant.”
On what authority can one say that “legal proceedings” and “disputes” in those section do not include or refer to criminal prosecutions?
“In the case of the NPA, s.41(1) is necessarily overridden by s.179.”
Exactly my point. But, I further argue that the whole of s 41(1) is overridden by s 179.
“Not all the behaviour-sets listed in that sub-section fit the NPA/NDPP like a glove, but when one size fits all, cramps often result.”
I argue that s 41(1) does not “fit” the NPA at all because, if it did, s 41(1) would not have qualified that only the “organs of state” that fall under the (a) limb of the definition, in other words “organs of state” that can properly be said to fall “within” or “in” a “sphere of government” are subject to s 41(1). Why would that section use the qualification “within a sphere” if that was not intended, but it was only intended that all “organs of state” as per s 239 are dealt with? I gues my argument on the (b) limb will “fly” after all.
“That is why Trengrove didn’t take the chapter 3 argument on behalf of Pikoli.”
I trust you have authority to base this assertion on? Are you, he?
I’m now unfortunately having to sign off until 2009 and will not be able to take the matter any further during this time.
I forgot to say:
Merry and a blessed Christmas and a happy and Prosperous 2009 to everyone of the bloggers. Keep well until then.
dgms, I think that when a blogger has admitted that he has no Constitutional Law background, it is unmannerly to rebuke hi so harshly for not being intimately acquainted with the Con Court Jurisprudence.
For Mr gorgunzola, here is a good article which posits the quasi-judical Head Prosecutor with the quasi-Executive Head Prosecutor using Namibia and South Africa as the examples. Personally, I believe that the quasi-judical model is best, although the prosecution is in the Public Interest and so this does suggest an Executive-type action. But you will see from it that DGMS is unquestionably correct in his analysis. I just feel we are at a stage now where our Interpretation has to be tightened up or redefined, The status quo is not accetable. http://www.kas.de/upload/auslandshomepages/namibia/Independence_Judiciary/horn2.pdf
OFF TOPIC:
Yes, Anonymouse, you were inadvertently making html comment tags. If you (or anyone else) want to quote in italics or bold, try a few basic html tags:
http://www.webmonkey.com/reference/HTML_Cheatsheet/#Text_Tags
Note: Only the em and strong tags should be sufficient. Enclose whatever you want in italic or in bold between an opening tag (without the dash) and a closing tag (with the dash) and your comments will be aesthetically pleasing.
ON TOPIC:
I fear the Ginwala Comission was an enquiry, carefully crafted to give Thabo Mbeki the kind of answers which would exonerate him from any wrongdoing. Pikoli is not a big enough fish to fry, yet he got fried because the bigger fish were getting a little too close to the frying pan and he was in a position to fry them.
Judging by a TV program I saw last night (Interface? Not sure, but the lady in charge made both COSATU’s spokesperson and the president’s spokesperson very uncomfortable..), a poll indicated that the public disagreed with the suspension (and dismissal) of Pikoli. 92% of the public voted against Pikoli’s dismissal. Only 8% voted in favour of president Motlanthe’s decision.
Thanks very much, Mpho!
I’m here to learn and I’m thankful for any homework assignments and reading.
Pierre, did you or anyone else link to Pikoli’s submission to Motlanthe? I didn’t see it, so here it is. Sorry if its already posted.
http://www DOT politicsweb DOT co DOT za/politicsweb/view/politicsweb/en/page71654?oid=112177&sn=Detail
Mpho // Dec 15, 2008 at 12:09 pm
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Thank you very much for the link, and the article is so enlightening.
Anonymouse // Dec 15, 2008 at 11:41 am
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Thanks Mouse and you too…