An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
At first glance the nature of the cross examination of Vusi Pikoli by the state’s counsel at the Ginwala Commission of Inquiry the past few days seems puzzling.
According to Independent Online, this morning during cross examination counsel for the state slammed the plea deals implicating National Police Commissioner Jackie Selebi in corruption as “flawed”, “unlawful” and “reading like a fairytale”. Counsel for the state, Seth Nthai SC, also strongly suggested this morning that the magistrate who sanctioned the Scorpions’ deals with self-confessed drug smugglers Glenn Agliotti and Clint Nassif had “made a mistake”.
Nthai earlier suggested that Selebi’s prosecutor, advocate Gerrie Nel, should face disciplinary action over the Nassif and Agliotti plea deals. Nel will be Pikoli’s next witness and is expected to give detailed evidence about why the Scorpions elected to make the Agliotti and Nassif deals. When Pikoli this morning denied any suggestion that the deals were improper and said he took responsibility for them, Nthai said: “Then I’m sure you will go down with him (NEL)”.
These attacks on Pikoli make sense if one is aware of the relevant sections of the law that would make it very difficult indeed to legally remove Pikoli from office for entering into or endorsing a plea bargain. The only hope for the state is to make a case that Pikoli acted in a grossly irresponsible or corrupt manner.
Section 179(4) of the Constitution and section 32 of the NPA Act makes clear that the National Director of Public Prosecutions (NDPP) must exercise his or her powers without fear, favour or prejudice. The Constitutional Court has confirmed that the NDP’s independence is therefore guaranteed and that the executive may not interfere with individual decisions made by the National Director – even when such decisions are unpopular, unwise or viewed as wrong or even flawed.
In terms of section 12(6) 0f the NPA Act, the NDPP can be removed from office on the basis of one of four objectively determinable grounds, but the terms of reference of the Ginwala Commission refers to only one of these grounds, namely whether the NDPP is still “a fit and proper person to hold the office concerned”.
Section 9(1)(b) of the NPA Act requires that the candidate “be a fit and proper person, with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities of the office concerned.” None of the allegations against Mr Pikoli relate to his experience, but both could, potentially, impact on his conscientiousness or integrity.
In case law dealing with the striking of attorneys or advocates from the role, South African courts have made clear that what was required to be a “fit and proper person” was to be honest and conscientiousness, which means a person must have the willingness and ability to perform with the required skill and the necessary diligence. Integrity is remaining honest – not lying, stealing or otherwise acting corruptly.
Section 105(A) of the Criminal procedure Act states that when a prosecutor enters into a plea bargain he or she must consider, at least, the nature of and circumstances relating to the offence; personal circumstances of the accused; previous convictions of the accused, if any; and interests of the community. The relevant court will then have to confirm the terms of any plea bargain, so the final say is not in the hands of the prosecutor or the NDPP, but in the hands of a magistrate or judge.
As a submission of SAIFAC to the Ginwala Commission has made clear, the NDPP could only be legally removed from office for entering or endorsing a plea bargain if he acted unconscientiously or without integrity. There would have to be very serious mistakes or repeated failures before he could possibly be removed. The errors must relate to competency or work ethic, not to differences of strategy. Either that, or the state would have to show that Pikoli entered into or endorsed a plea bargain in bad faith or for a corrupt reason.
No wonder counsel for the state is trying to suggest that the plea bargains was more than a mere mistake, but was indeed a flagrant dereliction of duty or even an unlawful act. But the state has a serious problem with this line of reasoning, because the plea bargains were endorsed by both the court and by the acting NDPP, Mokotedi Mpshe.
One may well disagree with either the decision of the court or the acting director, but it would be almost impossible to show that the entering into plea bargains that were endorsed by the courts were such a flagrant dereliction of duty that it warranted removal from office. Even worse, if this was such a terrible thing, why was the acting director not removed as well, given the fact that he had endorsed these plea bargains?
The histrionics of the Advocate Nthai during his cross examination of Pikoli is therefore understandable. It suggests that he is clutching at straws and that he is trying to intimidate Mr Pikoli because he does not really have a legal leg to stand on. Of course, whether Frene Ginwala will understand and apply the law is another matter. Only time will tell.BACK TO TOP