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.
The ANC majority of a joint ad hoc committee of Parliament has now taken a political decision to rubber-stamp the decision of President Kgalema Motlanthe to fire Vusi Pikoli, the National Director of Public Prosecutions (NDPP), on the basis that Pikoli was not suitably sensitive to national security concerns and was thus not a “fit and proper” person to perform his duties as NDPP as required by the NPA Act.
This is a sham decision and fortunately for Pikoli and his legal team the report by the ad hoc committee does not do a good job of hiding this.
Section 12(6) of the NPA Act makes clear that the NDPP can only be removed for one of four objectively determinable reasons, one being that he is no longer a fit and proper person to hold the office concerned. A decision by the President to fire Pikoli can therefore only be legally valid if it has been determined – looking at all the facts – that Pikoli is indeed no longer a fit and proper person. This is not a decision that can be taken on the basis of political considerations. In order to be legally valid, a clear determination has to be made on the facts and these facts must be shown to demonstrate that the NDPP is no longer a fit and proper person.
This would require the President and then Parliament (1) to define what constitutes a fit and proper person and (2) then to show that the NDPP has demonstrated through his actions that he no longer meets the criteria for a fit and proper person. A clear causal link must be established between the criteria set out in (1) and the facts that show the incumbent no longer meets those criteria. Otherwise the decision would be ultra vires and thus invalid and could be overturned by a court of law.
Unfortunately, the report utterly fails to define the criteria for a fit and proper person and thus falls at the first hurdle. It is thus my contention that the decision of the ANC majority is illegal and could very well be overturned. Apart from the breathtaking double standard of the ANC majority, who often talks about the right to be presumed innocent until proven guilty but failed to even pretend to consider such niceties in this case, the report fails to do what the Act requires it to do.
Of course the term “fit and proper” is not defined in the act and there may well be some difference of opinion about what the requirements for a “fit and proper” NDPP might be. It was therefore the task of the ad hoc committee to define what it understood under this term, taking into account the provisions of the Constitution and the NPA Act, before rushing to find that the man who wants to prosecute their boss does not meet the criteria set out in this definition.
So let me assist those honorable members of Parliament and explain how they should have proceeded if they had wanted to act in a legally defensible manner.
The NPA Act must be construed in the light of the Constitution and the words and phrases in it must – if it is reasonable possible to do so – be interpreted to comply with the letter and the spirit of the Constitution. We do know that section 179(4) of the Constitution states that “[n]ational legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice”. We also know that in the First certification judgment the Constitutional Court found that this phrase guaranteed the independence of the NPA and its boss. We also know that section 9 of the NPA Act states that an NDPP must 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”.
Read together, this seems to suggest that in order to be a fit and proper person the NDPP must first be capable and at all times willing to act independently, in other words without fear, favour or prejudice. The NDPP must not buckle under political pressure and should not make decisions regarding the investigation and prosecution of individuals on other than legal considerations and the prosecutions policy. Some would argue that Bulelani Ngcuka was not a fit and proper person because he is alleged to have made a decision not to prosecute Zuma based on exactly such political considerations. No credible allegations of a similar kind have been made against Mr Pikoli, so he clearly meets this criterion.
Second, the NDPP must show the necessary conscientiousness and integrity when doing his job. He must not be lazy, spectacularly careless or act in a dishonest or criminal manner. Given the constitutional guarantee of prosecutorial independence, this cannot mean that the NDPP must always be perfectly correct or must make the correct or wise decision every single time. To interpret the section otherwise would be to give a blank cheque to the President and Parliament to interfere in individual decisions made by the NDPP and even to fire him if they disagreed with the correctness or wisdom of a particular decision he made. Such an interpretation would not be in conformity with the constitutional guarantee of independence of the NDPP.
A general and persistent failure to follow prosecutions policy agreed upon with the Minister of Justice would however meet the threshold and would allow the President to fire the NDPP. It must be remembered that the Minister must formulate such a prosecution policy in concurrence with the NDPP and that this provides the Minister with the power to fulfill his or her constitutional duty to “exercise final responsibility” over the NPA.
At present the prosecutions policy does not require the NDPP to take into account national security when making decisions to investigate or prosecute individuals. The policy might well have to be amended to include such a provision, provided that the term “national security” is defined with sufficient precision and safeguards are included in the policy to ensure that such a clause does not give the Minister or the President unconstitutionally broad powers to interfere with the work of the NDPP. Fact is, at present there is no such policy and even if it could be shown that Mr Pikoli was not sensitive enough to national security issues, legally the prosecuting policy did not require him to do so.
In any event, even if the prosecutions policy did mention national security, on the facts before us it is clear that Mr Pikoli’s actions regarding the arrest of Police Commissioner Jackie Selebi do not warrant a finding that he was insensitive to national security. This is because the President has a constitutional duty to uphold the Constitution and also to oversee national security issues. Yet the President did not mention “national security” concerns when he suspended Mr Pikoli and nor did the government argue that Mr Pikoli had not taken into account national security concerns when he requested a warrant to be issued for Mr Selebi’s arrest.
If the President, with all the facts at his disposal and privy to national intelligence briefings, did not think this was a serious enough issue to warrant Mr Pikoli’s suspension, then it clearly was not a real issue that demonstrated Mr. Pikoli lacked the conscientiousness and integrity required by the Constitution and the NPA Act. Unless, of course, the President and the government lied when it suspended Mr Pikoli and unless the government then lied about the reasons for Mr Pikoli’s suspension before the Ginwala Commission of Enquiry and provided bogus reasons for his suspension.
Surely the President must be given the benefit of the doubt on this issue – given the fact that he is privy to all the dark secrets of the country and given also the fact that we must presume that the President would not deceive the nation or the Ginwala Commission of Enquiry.
Given the above, it seems clear to me that the decision by the ANC majority on the joint ad hoc committee of Parliament is a political and not a legal decision. I contend that the decision to fire Pikoli is therefore illegal and that Parliament will be in breach of the law and the Constitution if it confirms the decision of the ANC majority on the committee. I sure as hell hope Mr Pikoli and his lawyers take this case to the Constitutional Court and that, in due course, it will be shown that Parliament demonstrated that it was neither fit nor proper when it did this political hatched job on Mr Pikoli in order to try and protect their President.BACK TO TOP