Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
9 December 2008

Why Ginwala and Motlanthe are dead wrong

After re-reading Frene Ginwala’s report, it is quite clear to me that in her haste to protect the then Minister of Justice and the then President, she wrote a report riddled with inconsistencies and contradictions.  The President then decided to fire Pikoli and in doing so, may have misconstrued his powers in terms of the NPA Act.  He might well have acted ultra vires in doing so and Pikoli’s lawyers will have at least an even chance of winning a case if they wished to challenge this decision in court.

First, let us turn to dear Frene Ginwala – presumably like the then Minister and President, a disciplined member of the ANC – and her “Report”. This is of course not an independent Report, but a Report prepared by an ANC cadre. Remember, it was reported that Ms Ginwala travelled with Brigitte Mabandla on a flight from Cape Town to Johannesburg on 20 September 2007, two days after the Minister sent the illegal instruction to Vusi Pikoli to stop the arrest of Jackie Selebi. When asked about this in Parliament, the then Minister said she could not remember whether she had traveled with Ginwala, and she declined to answer a question about whether she had met with Ginwala in the days before or after this event.

She also declined to subject herself to cross examination before the Enquiry, which suggests that she knew her testimony would not stand up to scrutiny and that she would be pulled to threads under cross examination. Either Mabandla has a memory like a sieve (which is possible as it is rumoured that she is often tired and emotional), or she was lying through her teeth.

In any case, even Ginwala could not help but find at various stages of the Report that Vusi Pikoli’s had “impressed me as a person of unimpeachable integrity”; “impressed me as a man of unquestionable integrity, with passion to execute his constitutional responsibilities without fear, favour or prejudice”, and “impressed me as a person of unimpeachable integrity and credibility”. Yet she found at the same time that had facts about Pikoli’s refusal to accede to the President’s request not to arrest Selebi “been presented as the reason for the suspension, when the conduct would have held a real risk of undermining national security, I would not have hesitated to find the reason to be legitimate.”

Section 12(6) of the NPA Act makes clear that the NDPP can only be removed on stipulated grounds, including that he was no longer a “fit and proper person”. As Ginwala concedes, when deciding whether the NDPP is “fit and proper”, section 9 of that same Act stipulates that due regard should be given to his or her “experience, conscientiousness and integrity”.

But strangely, while she found that the NDPP was conscientious and had integrity,  she also seemed to find that he was “not fit and proper” to hold office because he refused to obsequiously adhere to the President’s dubious request not to arrest Selebi for at least two weeks for “national security” reasons. (In the event, Selebi was arrested later  –  by mere accident (?!) only after the Polokwane conference – and national security did not seem to suffer at all.) There was also no evidence given to the Enquiry that Pikoli’s actions actually threatened national security in any way. So let me get this straight: although possessing the qualities that makes a person fit and proper, he was not fit and proper because he refused to obey the President’s “request” not to arrest Selebi because maybe, just maybe, national security might have been threatened. Go figure.

Ginwala also found that Pikoli was not suspended because the government wanted to stop the prosecution of Selebi. Yet she found that the Minister had signed a letter instructing Pikoli not to arrest Selebi and that this instruction was illegal and may have constituted a criminal offense. She also found that the President requested Pikoli not to immediately arrest Selebi and then suspended Pikoli when he refused to give the President more than a week before arresting the Police Commissioner. The suspension occurred a day before the arrest of Selebi would have been effected by Pikoli.

The government then provided several bogus reasons for the suspension and proposed dismissal – all rejected by Ginwala as invalid reason for Pikoli’s dismissal – and studiously avoided mentioning Pikoli’s decision to arrest Selebi as a possible reason for his suspension and possible dismissal.  Yet Ginwala herself then found that because Pikoli had the cheek to assert his independence when requested not to proceed with the arrest of Selebi, he had failed in his duties and might therefore not be a fit and proper person.

She even suggested that Selebi did not have a right to present the President with the fait accompli, namely that he would arrest Selebi and that he was required first to inform the Minister and the President before getting the warrant for Selebi’s arrest and then had a duty to obey any request by the President not to arrest the Police Commissioner until such time as the President had taken the steps he might have claimed he deemed necessary to save us all from the national security catastrophe that would ensue. This does not seem to square with her earlier finding that the executive could not interfere with operational decisions of the NDPP.

These contradictions can only be wiggled out of if one makes the semantic argument – as Ginwala might well do – that government did not want to stop the (eventual) prosecution of Selebi – but merely the arrest of Selebi before the Polokwane conference or for some other vague reason regarding national security or the need to inform the tooth fairy. Ginwala is rather silent on this obvious point.

The Report also suggests that, when the President asked Mr Pikoli to suspend the execution of the warrants for two weeks, Pikoli should blindly have agreed to do so without question. But the President did not motivate his request for two weeks in any way and when Pikoli suggested one week instead, the President did not engage with him on the adequacy of his suggestion. As Pikoli’s lawyers point out:

[The President] did not say that a week would not be enough. The impression he created was that he would have preferred two weeks but that a week would do. There is no reason to believe that the President was overly concerned about the matter. …  When the Minister asked Mr Pikoli to resign on Sunday afternoon 23 September 2007, she did not suggest that it had anything to do with his failure to allow the President more time to create an enabling environment. She would have done so if it was a real concern at the time.

When the President suspended Mr Pikoli, he did not say or suggest in their meeting or in his letter of suspension that it had anything to do with Mr Pikoli’s failure to accommodate the need for an enabling environment. He would have done so if it was a real complaint at the time.

Government never raised this complaint in their public statements after Mr Pikoli’s suspension, in their founding statement in the enquiry, in their supporting affidavits or even in their affidavits in reply. The DG in the Presidency filed two affidavits but neither of them suggested any unhappiness about Mr Pikoli’s reluctance to delay the execution of the warrants for more than a week.

In other words, Ginwala “invented” this reason to make a finding adverse to Pikoli without this ever having been raised by the Minister, the President or anyone else in their respective offices and without this having been given as a possible reason for his suspension. There is of course a very good reason why these people never mentioned Pikoli’s refusal to stop the arrest of Selebi, namely such an admission would have been tantamount to an admission that Pikoli was suspended because he had refused to stop the arrest of Selebi. Ginwala in effect finds that this would indeed have been a valid reason for the suspending Pikoli, yet she found that this was not at all the reason why the NDPP was suspended. Go figure.

Second turning to President Motlanthe’s announcement: The President stated that “it should be noted that the requisite skills would, necessarily, include professional competence as well as those outlined by the enquiry, in particular, appreciation for and sensitivity to matters of national security” and then found that based on these circumstances Pikoli was not a fit and proper person. Once again, no mention is made of the content of what constitutes a fit and proper person as set out in section 9 of the NPA Act. He fails to deal with the assertion made by Pikoli’s lawyers that:

None of the criticisms of Mr Pikoli come close to impugning his fitness to hold the office of NDPP. They reflect a mere difference of opinion between the enquiry and Mr Pikoli about the way in which he should perform his functions as NDPP. They do not reflect on his fitness for office at all.

But Jacob Zuma and the ANC needed to get rid of Pikoli so that a pliant NDPP can be appointed to ensure the case against Mr Zuma is never brought to court. Mark my words,  unless Pikoli challenges and wins a case against the decision to fire him, the President is going to appoint a party hack to the position of NDPP and this party hack will decide not to pursue the case against Zuma.

NPA independence R.I.P.

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