As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Former US President Bill Clinton famously lied to the American people by saying: “I did not have sex with that women”. He then tried to wiggle out of a difficult question posed by a lawyer by saying: “Well, it depends on what your definition of ‘is’ is”. Former President Thabo Mbeki seems to have the same informal relationship with the truth regarding the suspension and purported firing of National Director of Public Prosecutoins (NDPP), Vusi Pikoli.
In a remarkable affidavit submitted to the North Gauteng High Court by Mbeki in support of Pikoli’s purported firing, the former President tries to wiggle out of the corner he has painted himself into on this matter.
After all, if Pikoli was really suspended and then purportedly fired for dismissing Mbeki’s request to wait two weeks before arresting former police commissioner Jackie Selebi, thereby disregarding national security concerns, surely this should have featured in the letter that Mabandla wrote to Pikoli two days before his suspension? And again, in the letter Pikoli received from Mbeki, suspending him? Perplexingly, this accusation was also missing from the terms of reference of the Ginwala Enquiry itself.
No wonder Mbeki’s affidavit is so opaque and – dare I say – misleading. Either Mbeki and his office lied to the nation when Pikoli was suspended or he is lying in his affidavit submitted to the court. But he seems less adept at this kind of fudging of the truth than Bill Clinton ever was so the result is rather embarrassing.
First, Mbeki’s suggests that in his letter in which he suspended Pikoli he mentioned the threat posed by some crimes to national security “and expressed a concern regarding the applicant’s exercise of his discretion to prosecute offenders and the potential effect of such exercise on national security”. Given the fact that Pikoli was ostensibly fired because he failed to take into account national security issues when he obtained a warrant for Jackie Selebi’s arrest, this might suggest (admittedly without saying so directly) that the President’s letter had anything to do with the Jackie Selebi matter. It clearly did not. The “national security” concerns expressed in the letter related to plea bargains and had nothing to to with Selebi.
Second, Mbeki states that section 179(6) of the Constitution “stipulates that the Minister of Justice and Constitutional Development… must ensure that the Prosecuting Authority serves the public interest“. Unfortunately there is no such provision in the Constitution. Nor is there any case law interpreting this provision in the manner suggested in the letter.
Third, Mbeki claims that he did not mention the national security concerns relating to the arrest of Jackie Selebi because an Enquiry would be held in which this question could be ventilated. This does not seem accurate, as the terms of reference of the Ginwala Enquiry refers to “the threat posed by organised crime” to the national security of South Africa” and does not mention any threat to national security posed by the arrest of Selebi. So, unless Mbeki is of the opinion that the Police itself is an organised crime ring, it cannot be true that the arrest of Selebi was something he envisaged would be dealt with by the Ginwala Enquiry.
Moreover, when the government presented its case against Pikoli at the Ginwala Enquiry it failed to mention any – I repeat ANY – concern that Pikoli’s actions to obtain an arrest warrant for Selebi was in any way threatening national security. Claiming now that such concerns was at the heart of the suspension of Pikoli can only mean one of two things: Mbeki and his underlings lied until now about the real reasons for Pikoli’s suspension or they are lying now.
Fourth, Mbeki denies that Pikoli regularly reported to him on progress in the Selebi investigation. According to Mbeki, where meetings were held with the NDPP it was to “facilitate access to information held by the SAPS”. This denial seems difficult to sustain. In an affidavit provided by Acting Head of the NDPP, Mokotedi Mpshe, Mpshe claims that the NDPP had met with the Minister and Mbeki on ten different occasions to inform them about the Jackie Selebi matter. Moreover in a fourteen page letter written to Mbeki on 7 May 2007 by Pikoli, the President is extensively informed about the Jackie Selebi investigation. Anyone who reads this letter will have difficulty in agreeing with Mbeki’s contention that he was not informed about the investigation. But I suppose it depends on what your definition of “regularly” is.
Interesting, Mbeki now claims that when he suspended Pikoli he “did not purport to place verbally before [Pikoli] all the grounds” for his decision. This means that Mbeki is now admitting that he misled Pikoli and the public and that the grounds given to Pikoli and later communicated to the nation for the suspension were not the only reasons for his suspension. Despite claiming at the time that the suspension was due to a breakdown of the relationship between Pikoli and the Minister, Mbeki now claims there were other grounds never communicated to us and that his spokespeople lied when they denied the suspension had anything to do with the Selebi matter.
Mbeki also has to explain why he did not respond to Pikoli when he said he would give the President one week to prepare the environment for the arrest of Selebi and he does so by contradicting himself. First, he denies that he did not raise the national security issue with Pikoli when he suspended him but a few paragraphs later he states: “I fail to understand how my failure to complain directly to what I viewed as a fait accompli can be construed as a lack of concern that I was not informed of the intention to obtain the warrants.”
This does not seem to make sense and seems like an obvious contradiction. I suppose it is difficult to keep your story straight if your story keeps on changing. But I suppose it depends of what your definition of “directly” is.
This affidavit tries to argue ex post facto that Pikoli was suspended only because he obtained an arrest warrant for the National Police Commissioner. But the Presidency at the time explicitly denied that this was so. I am not sure Mbeki appreciates how poorly this admissions in his affidavit reflects on the credibility and integrity of the Presidency during his term.
The only possible conclusion one can draw from this affidavit is that – like Bill Clinton – the former President is rather economical with the truth. What we do not know is whether the lies occured when Pikoli was suspended or whether they are happening now.BACK TO TOP