Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
5 December 2008

Should Pikoli be re-instated pronto?

If a news report in today’s Mail & Guardian is correct, Vusi Pikoli should immediately be re-instated as National Director of Public Prosecutions. According to the Mail & Guardian the confidential report of the Ginwala commission clears former president Thabo Mbeki of an abuse of executive power, while at the same time exonerating Pikoli. Apparently the report recommends his reinstatement as national director of public prosecutions.

Apparently the report finds that Mbeki did not interfere in the arrest and prosecution of police National Commissioner Jackie Selebi.

Our investigation shows that former speaker Frene Ginwala and her panel rejected suspended prosecutions boss Vusi Pikoli’s contention that Mbeki colluded with senior government officials to save Selebi’s skin. Instead, the report says justice department boss Menzi Simelane misled former justice minister Brigitte Mabandla and withheld information from her and the inquiry.

It further finds that: Simelane misled Mabandla, although she trusted him; Pikoli was lax in his handling of security clearance issues; and Pikoli gave former Scorpions boss Leonard McCarthy too much freedom.

It is difficult to analyse (or critique) these findings without sight of the full report. But a few preliminary observations are in order.

First, if the report does indeed find Pikoli continues to be a fit and proper person as required by the National Prosecuting Authority Act, we would then be able to conclude in hindsight that there was no reason for the then President to have suspended Pikoli and that the President had made a mistake in doing so.

While section 12 of the NPA Act allows the President to suspend the head of the NPA pending an inquiry into whether he is a fit and proper person, this suspension must be linked to a reasonable belief by the President that an inquiry could find that the NDPP is not fit and proper to hold office. If Pikoli is indeed exonerated by the report, it would constitute a slap in the face of Mbeki (or his legal adviser),  as it would suggest that he was wrong to believe (if he ever did believe) that Pikoli’s actions made him not a fit and proper person to hold office.

Second, if the Ginwala inquiry had failed to obtain evidence that Pikoli was not fit and proper, it would be impossible for President Motlanthe not to reinstate him as NDPP. This is because the NDPP can only be fired on the basis of one of the objective factors set out in section 12 of the NPA Act. If an inquiry has now found none of these objective factors existed, then there was no basis for him to be fired and he would have to be reinstated immediately. Failure to do so might be construed as an attempt to interfere with the independence of the NPA and the NDPP as guaranteed in the Constitution and the NPA Act.

Third, if the Mail & Guardian report is correct, the position of the Director General of the justice department must be in serious jeopardy. If I was the director general I might feel aggrieved about such a finding, given the fact that the then Minister of Justice, the President’s legal adviser (who, we now know, played an important part in persuading – or “assisting” – Mokotedi Mpshe to cancel the warrant for Jackie Selebi’s arrest) and the President himself had not testified before the Commission.

If I was Simelane I might well have felt that I had been made the scape goat for the mess that led to the suspension of Pikoli. I would also wonder what happened on the day before Pikoli was suspended and what was said that day between the then Minister of Justice (apparently exonerated by the report) and Ginwala when they travelled together on an SAA flight to Pretoria.

However, one would have to wait and see how persuasive the actual report is, before making any definitive comments about its credibility and before casting aspersions on Ginwala.  It might well be that her findings are well reasoned and well justified and that it shows convincingly that the director general was the villian in this drama. Who knows. One thing is certain, the sooner the President releases the report the better for all of us.

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