Quote of the week

Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation.  This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.

KHAMPEPE J and THERON J
Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29 (22 July 2019)
25 April 2008

Ginwala enquiry dead in the water?

Just after pressing the “publish” button on the previous post on Vusi Pikoli, I received the insightful submission by the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC) invited by the Ginwala Enquiry which seems to suggest Frene Ginwala will have a really hard time to get rid of Mr Pikoli if she is prepared to follow the law and the Constitution.

The submission makes the interesting point that while the NPA Act allows for the National Director to be removed on four different grounds, the terms of reference of the Ginwala Enquiry makes it clear that she could only recommend his removal on one of these grounds – namely whether Mr Pikoli was a “fit and proper person”.

It also makes clear that given the constitutional guarantee of independence, the NPA Head could not be removed because of a difference of opinion between him and the Minister of Justice about individual decisions to prosecute, not prosecute or strike plea bargains. The government case apparently relies heavily on the issue of plea bargains, arguing that Mr Pikoli had improperly struck plea bargains without taking into account the public interest or the national security interest of the Republic.

The SAIFAC submission makes clear that the power how to exercise the plea bargain power is vested in the National Director and not in the Minister or the President. Money Qoute:

The President may well disagree with a specific decision [to strike a plea bargain]. He may feel that a particular accused should have been prosecuted or that a different accused should not have been. But the President’s opinion is irrelevant because the discretion to prosecute, bargain or offer immunity vested entirely in the NPA. The only way the President’s concern might justify dismissing Mr Pikoli would be if it is supported by facts that indicate that Mr Pikoli, in deciding whom and on what terms to plea bargain, acted unconscientiously or without integrity and so rendered him no longer “fit and proper” to serve as NDPP.

This is an extremely difficult threshold to meet. If Ginwala agrees with this interpretation it would be difficult to see how – on the facts available to us now – Mr Pikoli could be dismissed. Of course, the government might have explosive evidence at its disposal and this might change the picture, but as things stands it is difficult to see how Pikoli does not win this case – either before Ginwala or on review before a court.

Which suggests another question: if there was such a flimsy legal basis for the suspension of Pikoli, why did the President nevertheless go ahead with the suspension? Was he badly advised by his lawyers? Was he trying to protect Jackie Selebi at any cost? Or – more intriguing – was he playing some Machiavellian pre-Polokwane game by suspending Pikoli so unpopular with the Zuma faction in an attempt to garner some support for his re-election bid?

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