THE NORTH GAUTENG HIGH COURT, PRETORIA
Case 8550/09
In the matter between:
PIKOLI, VUSUMZI PATRICK Applicant
and
THE PRESIDENT First Respondent
THE SPEAKER OF THE NATIONAL ASSEMBLY Second Respondent
THE CHAIR OF THE NATIONAL COUNCIL OF PROVINCES Third Respondent
APPLICANT'S REPLY
I, the undersigned,
VUSUMZI PATRICK PIKOLI
make the following statement under oath.
1. I am the applicant. This is my reply to the respondents' answering affidavits.
2. I have personal knowledge of the matters to which I depose in this affidavit unless it is apparent from the context that I do not. I also rely on the accompanying confirmatory affidavit of Mr G C Nel. The legal submissions in this affidavit, are made on the advice of my lawyers.
3. I will first address two inter-related general topics that go to the heart of President Motlanthe's justification of his decision to remove me from office. He says he concluded that I was no longer fit for office. He says that he based this conclusion entirely on Dr Ginwala's report. But her report came to the opposite conclusion. She held that none of the government's attacks on my fitness for office had been substantiated and that I should accordingly be restored to office. She went on to express concerns about my "two weeks - one week" conversations with President Mbeki over the weekend of 15 and 16 September 2007 but made it clear that they did not justify a finding that I was unfit for office inter alia because I was never called upon to meet a charge on that basis. President Motlanthe however made those concerns the foundation of his decision to remove me from office. I submit at the outset that he was wrong to do so for two fundamental sets of reasons:
3.1. The first is that he misunderstood and misconstrued Dr Ginwala's report to found a basis for his conclusion that I was unfit for office contrary to the conclusion of the report itself.
3.2. The second is that my "two weeks - one week" conversations with President Mbeki in any event did not warrant the concerns Dr Ginwala expressed about them or the conclusions President Motlanthe drew from them.
4. After addressing these two general issues, I will deal with the respondents' answering affidavits one-by-one and paragraph-by-paragraph.
5. I will for the sake of courtesy and consistency refer to President Mbeki, President Motlanthe and Minister Mabandla by those titles despite the fact that they no longer hold those offices. I do not thereby mean any discourtesy to them or their successors in office.
THE PRESIDENT'S UNDERSTANDING AND USE OF THE GINWALA REPORT
6. The single most remarkable feature of President Motlanthe's explanation for his decision to remove me from office, is that he says that he based it on the report of Dr Ginwala but she had come to the opposite conclusion that I should be reinstated to the office of National Director of Public Prosecutions.
7. I submit with respect for the reasons that follow, that the President managed to base his decision on Dr Ginwala's report but come to the opposite conclusion, only by the following manipulation:
7.1. He took her adverse findings and concerns about my conduct as given. He disregarded my submissions that some of them were wrong.
7.2. He discounted Dr Ginwala's conclusion by disputing her mandate to make it and by misconstruing it.
7.3. He elevated the concerns she had expressed about my conduct beyond the scope of her enquiry to crucial adverse findings against me within the scope of her enquiry.
7.4. He used those concerns so elevated, as a springboard for further inferential reasoning to justify his conclusion that I was unfit for office.
8. In order to explain these submissions, I will first describe the procedure Dr Ginwala followed in her enquiry and the import of her report.
9. I emphasize again at the outset, that Dr Ginwala's report does not constitute admissible evidence of the truth of its content. It is relevant only because it formed the basis of President Motlanthe's decision to remove me from office. I submit with respect that it did not justify his decision even if it were to be taken at face value.
The procedure Dr Ginwala followed
10. The most significant feature of the procedure Dr Ginwala followed, was that she invited government to formulate all the charges against me, that is, all the grounds upon which they contended that I was unfit for office, and then enquired into the validity of those charges. I submit that it was a perfectly sensible and fair procedure. It had the following implications germane to this review:
10.1. Dr Ginwala did not limit government to the reasons President Mbeki had originally given for my suspension. They had a free hand to add any further grounds upon which they contended that I was unfit for office. They in fact added a number of additional grounds to the original charges they advanced in the enquiry.
10.2. Government's charges then formed the basis of the enquiry and defined its ambit. They were the only charges I was called upon to meet. I was not called upon to address any other imputations against my fitness for office.
10.3. Dr Ginwala ultimately determined all government's complaints against me. She did not confine her report to a determination of President Mbeki's reasons for suspending me. She should also not have made any findings against me beyond the charges against me.
11. Dr Ginwala's mandate under her Terms of Reference of 3 October 2007[1] was to enquire into my fitness to hold the office of National Director of Public Prosecutions.
12. On 4 October 2007 Dr Ginwala invited the government and me to make submissions to her on my fitness for office.
13. The Minister of Justice made government's submission to Dr Ginwala in an unsworn statement on 18 October 2007. Annexure 991 is a copy of the statement without its annexures. The Minister dealt with my fitness for office in section C of the statement, annexure 1010. She made a range of particular charges against me. None of them arose from my "two weeks - one week" conversations with President Mbeki over the weekend of 15 and 16 September 2007.
14. On 11 December 2007 Dr Ginwala published the rules of her enquiry, annexure 1038. Rule 2.1 required the Minister to file statements on oath in support of government's charges and rule 2.2 required me to file statements on oath in my defence to them.
15. Government filed six affidavits in support of the charges in January 2008. They included an affidavit by Reverend Chikane annexure 1046. None of the affidavits including that of Reverend Chikane, raised any complaint about my "two weeks - one week" discussions with President Mbeki.
16. In early February 2008 I filed ten affidavits in response to government's evidence on the charges.
17. In late February 2008 government filed six affidavits in reply to mine. They again included an affidavit by Reverend Chikane annexure 1050. None of the affidavits raised any complaint about my "two weeks - one week" discussions with President Mbeki.
18. In late March and early April 2008 both sides filed written heads of argument. They were confined to the charges against me. Government still did not make any complaint arising from my "two weeks - one week" discussions with President Mbeki.
19. The parties presented their arguments to Dr Ginwala on 7 and 14 April 2008. They were also confined to the charges. Government made no complaint against me arising from my "two weeks - one week" discussions with President Mbeki.
20. Dr Ginwala ruled on 23 April 2008 that the parties' affidavits and submissions revealed disputes of fact which could not be resolved on paper and had to be referred to oral evidence. Annexure 1058 is a copy of her ruling. As appears from paragraph 2, the only issues referred to oral evidence, were the disputes of fact on the papers as they stood. Paragraph 4 made it clear that "the parties may lead only the salient aspects of the evidence of those witnesses who have earlier deposed to affidavits". The oral evidence was accordingly confined to the disputes of fact arising from government's charges and my defence to them.
21. On 19 June 2008 Dr Ginwala identified the main disputes between the parties and enquired from them which witnesses they proposed to call on those issues. Annexure 1062 is a copy of her letter. As appears from the main issues she identified in it, they were confined to disputes of fact between the parties on the papers as they stood.
22. The hearing of oral evidence commenced on 7 May 2008. Annexure 1065 is a copy of the cover page and pages 1 to 8 of the transcript of the hearing. As appears from it, both Dr Ginwala and counsel for the government made it clear that the oral evidence would be confined to the disputes of fact between the parties on the papers as they stood:
22.1. Dr Ginwala said that,
"An examination of the submissions has led me to conclude that there are material disputes of fact between the parties and it is therefore decided to hold hearings at which evidence could be led and tested in cross-examination."[2]
22.2. Counsel for the government echoed this understanding of the ambit of the oral evidence. She outlined the issues the government witnesses would address.[3] All of them related to the disputes of fact on the papers as they stood. Counsel reiterated this understanding in the conclusion of her opening address:
"We will submit that in order to discharge your duties Madam Chair, you must have regard to the allegations and make a determination as to whether the government has been able to substantiate the charge that Mr Pikoli is not a fit and proper person to be entrusted with the office of Director of Public Prosecutions."[4]
23. When the Reverend Chikane gave evidence, he alleged for the first time that President Mbeki had suspended me because I had presented him with a fait accompli over the weekend of 15 and 16 September 2007, that I would go ahead with the arrest and prosecution of the National Commissioner of the South African Police Service Mr Selebi, without affording the President an opportunity to create an enabling environment for it. We did not object to this evidence because it was relevant to my contention that President Mbeki had not suspended me for the reasons he advanced at the time but to put a spoke in the wheels of the DSO's plans to arrest and prosecute Mr Selebi. Government did not suggest and we did not understand, this evidence to raise a new complaint about my fitness for office. Reverend Chikane's evidence on this score was moreover couched in vague and general terms. He made no mention of my "two weeks - one week" discussions with President Mbeki at all.
24. When I gave evidence, I dealt with Reverend Chikane's evidence in the course of recounting the chronology of the events that culminated in my suspension. I described my "two weeks - one week" conversations with President Mbeki over the weekend of 15 and 16 September 2007 and explained why I had responded to his request for a two week suspension of the execution of the warrants by agreeing to suspend them for only one week.
25. In my cross-examination, government did not suggest that my "two weeks - one week" discussion with President Mbeki gave rise to any further complaint against me. On the contrary, government denied that such a conversation had taken place at all. Government's senior counsel put it as follows:
"Oh no Mr Pikoli we are saying there was no mention of two weeks or one week in that conversation, that's the dispute. And we are saying to you this is a recent fabrication that surfaced when you started giving your evidence-in-chief".
26. After the oral evidence had been heard, both sides filed closing heads of argument. Government persisted in their denial of my "two weeks - one week" discussions with President Mbeki. They put it as follows:
"We accordingly submit that the NDPP's testimony to the effect that there was a discussion of time periods between him and the President before the warrants were executed is a contrived afterthought, fabricated for the first time during his oral testimony to mitigate for the fact that he went to the President with a fait accompli - unwavering in his stance - that they had warrants and that they were going to act on them."
27. The enquiry was accordingly confined throughout, to the charges government had made against me. They did not include any charge relating to my "two weeks - one week" discussions with President Mbeki. Government never extended the charges against me to include such a charge.
28. There are two important features of Dr Ginwala's report which President Motlanthe has misunderstood or misconstrued:
28.1. The first is that Dr Ginwala enquired into and determined all the charges against me, that is, all the grounds upon which government contended that I was unfit for office. She did not confine herself to the reasons President Mbeki had originally advanced for my suspension.
28.2. The second is that Dr Ginwala drew a clear distinction between her findings on matters in issue in her enquiry and matters that were not in issue and upon which she could not in fairness make findings imputing my fitness for office. The only matters in issue before her, were government's charges against me. I was not called upon to answer and rebut any other imputations against me. While Dr Ginwala expressed concerns about matters other than government's charges against me, she recognised that she could not take them into account in determining my fitness for office because I had not been called upon to rebut them.
29. The suggestion that I jeopardised national security by my "two weeks - one week" conversations with President Mbeki on the weekend of 15 and 16 September 2007, is a good example. It was never part of government's case that those discussions jeopardised national security. Government's charges against me did not raise those conversations as an incident that reflected on my fitness for office. Although some reference was made to it in the evidence, I was not called upon to meet it because it did not form part of government's case against me. I accordingly did not take advice on the issue, investigate it and call evidence in rebuttal of it. Had I been called upon to do so, I would certainly have addressed issues such as,
- whether the DSO's planned execution of the arrest and search warrants of Mr Selebi posed a threat to security;
- what the nature of the threat was;
- what steps the DSO had already taken to avert any such risk;
- what further steps the DSO planned to take to avert such a risk;
- what more needed to be done to avert the risk, and
- how long it would take to do so.
30. Dr Ginwala's report commenced with her executive summary from page 1:
30.1. She gave a brief sketch of the history of her enquiry from page 1 (Annexure 310) in paragraphs 1 to 10.
30.2. She summarised government's charges against me and her findings on them from page 7 (Annexure 316) in paragraph 11. They included all government's charges against me and not only the reasons President Mbeki had originally advanced for my suspension.
30.3. She summarised her conclusion on government's charges against me from page 11 (Annexure 320) in paragraph 13 as follows:
"I have found that government has failed to prove many of these allegations and has not demonstrated that Advocate Pikoli is no longer fit and proper to hold office as NDPP. The grounds advanced by government for the suspension of Advocate Pikoli have not been established before the enquiry."
Although she said in this paragraph that government had not established any of the grounds advanced for my suspension, it is clear when this paragraph is read with paragraph 11, that she found that government had not established any of the grounds it had advanced against me in the enquiry in their attempt to justify my original suspension.
30.4. After having come to this conclusion on my fitness for office in the light of government's charges against me, she proceeded from page 12 (Annexure 321) in paragraphs 14 to 18, to raise matters beyond those which had been in issue between the parties before her. The first was that there had been differences between me and the Minister which had been precipitated by the misconception of the DG of Justice of his authority over the NPA which had influenced his reports to the Minister (paragraph 14). The second was the conduct of the DG of Justice which "left much to be desired" in that his evidence was "contradictory and without basis in fact or in law" and that he had prepared government's charges against me of which several were "shown to be baseless" and which he was forced to retract in cross-examination (paragraph 15). The third was her concern about my capacity and understanding of issues pertaining to national security in general as manifested in my "two weeks - one week" conversations with President Mbeki over the weekend of 15 and 16 September 2007 (paragraphs 16 and 17).
30.5. She concluded her expression of her concern about my "two weeks - one week" discussions with President Mbeki in paragraph 17 as follows:
"Had this been presented as a reason for the suspension, when his conduct would have held a real risk of undermining national security, I would not have hesitated to find the reason to be legitimate. However, these were not among the reasons put forward by government before this enquiry."
30.6. I will later submit that Dr Ginwala was both mistaken and unfair on this score. For present purposes however, it is important to note that she made it clear that she refrained from holding that this incident reflected on my fitness for office for two reasons. The first was that there was no evidence that my conduct had indeed "held a real risk of undermining national security". The second was that this was not a charge government had advanced against me in the enquiry. She accordingly recognised that it would be unfair to make a finding against me on this basis because I had never been called upon to answer this charge and had never been offered a fair opportunity to rebut it.
31. The body of Dr Ginwala's report followed the same pattern as the executive summary:
31.1. She described the history of the enquiry from page 15 (Annexure 324) in paragraphs 1 to 44.
31.2. She discussed the principles of prosecutorial independence and ministerial oversight from page 36 (Annexure 345) in paragraphs 45 to 66.
31.3. She discussed the requirement that the NDPP had to be "fit and proper" from page 51 (Annexure 360) in paragraphs 67 to 75.
31.4. She discussed the principles of co-operative government from page 56 (Annexure 365) in paragraphs 76 to 80.
31.5. She discussed government's charges against me one-by-one from page 61 to page 188( Annexures 370 to 497). She dealt with each charge, the evidence in support of it, the evidence in rebuttal of it, and her findings on it. She covered all government's charges against me and did not confine herself to the reasons President Mbeki had originally advanced for my suspension.
32. Dr Ginwala summarised her conclusions from page 189 (Annexure 498) in paragraphs 303 to 358:
32.1. She started with a brief introduction from page 189 (Annexure 498) in paragraphs 303 to 307. She contrasted the reasons President Mbeki had originally advanced for my suspension (paragraph 306) with government's charges against me (paragraph 307).
32.2. She summarised her findings on all government's charges against me in paragraphs 308 to 349. She did not confine herself to the reasons President Mbeki had originally advanced for my suspension. She concluded this summary on page 206 (Annexure 515) in paragraph 349 as follows:
"Having considered all the matters above, the basis advanced by government for the suspension of Advocate Pikoli has not been established through the evidence submitted to the enquiry."
It is again clear from the context that, when she spoke of "the basis advanced by government for the suspension of Advocate Pikoli", she meant all the charges government had advanced against me in the enquiry in their attempt to justify my suspension.
32.3. She went on from page 206 (Annexure 515) in paragraphs 350 to 357 to elaborate on her concern about my capacity and understanding of issues of national security and particularly my "two weeks - one week" discussion with President Mbeki on the weekend of 15 and 16 September 2007. She again concluded this discussion in paragraph 357 as follows:
"Had these facts 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. However, these were not the reasons put forward by government."
She accordingly again made it clear that she did not make a finding against me on this basis for two reasons. The first was that it was not one of the reasons put forward by government. She recognised in other words, that it would be unfair to make a finding against me on an issue upon which I had never been called to defend myself. The second was that there was in any event no evidence that my conduct had "held a real risk of undermining national security".
33. Dr Ginwala concluded her report with her recommendations from page 212 (Annexure 521) in paragraphs I to VIII. Her principal recommendation in paragraph I was that I should be restored to office because government had failed to substantiate their charges against me:
"As the government has failed to substantiate the reasons given for the suspension, Advocate Pikoli should be restored to the office of NDPP. Advocate Pikoli needs to be sensitised to the broader responsibilities of his office and in particular to enhance his understanding of the security environment in which that office should function."
34. Dr Ginwala's report accordingly made two things abundantly clear:
34.1. The first is that she dismissed all the government's charges against me. She did not confine herself to the reasons President Mbeki had originally advanced by my suspension. When she said that government had failed to substantiate "the reasons given for the suspension", she meant the charges government advanced against me in the enquiry in justification of the suspension and not merely the reasons President Mbeki had originally advanced for it.
34.2. The second is that, although Dr Ginwala expressed concerns about my understanding of and sensitivity for issues of national security, she recognised that she could not in fairness make any finding on my fitness for office on this score because it was not a charge I was ever called upon to answer and rebut.
35. I will now demonstrate against this background, how President Motlanthe erred in using Dr Ginwala's report to come to the opposite conclusion that I was no longer fit for office.
He took her adverse findings as given
36. President Motlanthe started off by taking all Dr Ginwala's adverse findings against me including the concerns she expressed on matters upon which I had never been called upon to defend myself, as given. He did not consider in good faith whether they were indeed correct and whether I had been afforded a fair hearing on them.
37. After Dr Ginwala had rendered her report, President Motlanthe invited me to make submissions to him on her adverse findings against me. He did so in his letter of 11 November 2007, annexure 524. I made extensive submissions to him on Dr Ginwala's report and in particular on her adverse findings. Annexure 526 is a copy of my submissions. I submitted that the adverse findings were wrong and in any event did not justify any suggestion that I was no longer fit for office.
38. President Motlanthe said in his letter of dismissal of 8 December 2008 annexure 563, that he had carefully considered my submissions. He made it clear at 565 in paragraphs 10 to 12 however that he had not been open to any suggestion that the Ginwala report might have been wrong in any way. He referred to my submissions in paragraph 10 and then went on to say in paragraph 11 that "It seems to me (however) that I am required to approach the matter on the basis of the findings reached by an independent enquiry and which has resulted in a detailed and motivated report". He added in paragraph 12 that he was "of the view that I am obliged to consider the report of the Chairperson and, based thereon, to make a final decision". It is accordingly quite clear that he was not open to persuasion at all.
39. President Motlanthe now says on page 696 in paragraph 97.2 of his answer in this review, that he applied a different test:
"If it could be shown that findings were irrational, illogical or not justified on the evidence led, then I would be entitled, and again indeed obliged, to form a different view to the findings made by the Chairperson of the Enquiry".
40. But this new test cannot be the one he applied and would in any event have been the wrong test:
40.1. The new test is irreconcilable with his letter of dismissal in which he said that he was "required" to approach the matter on the basis of Dr Ginwala's findings and "obliged" to base his decision on them.[5]
40.2. He could not have considered whether Dr Ginwala's findings were irrational, illogical or not justified "on the evidence led". He never considered the evidence. It was not before him. This much is apparent from Mr Moosajee's affidavit which describes the record on which President Motlanthe based his decision to remove me from office.[6] It did not include the evidence led in the Ginwala Enquiry.
40.3. The test would in any event have been the wrong one to apply particularly in relation to matters such as my "two weeks - one week" conversation with President Mbeki which fell beyond the scope of government's charges against me and thus beyond the scope of the enquiry before Dr Ginwala. Dr Ginwala recognised that she could not in fairness make any findings against me on those matters precisely because they fell beyond the scope of the enquiry and I had accordingly not been afforded a fair opportunity to rebut them. It would accordingly have been quite wrong for President Motlanthe to ask merely whether her concerns were justified by the evidence led before her when the very evidence was incomplete because the matter fell beyond the scope of the enquiry and had thus not been properly investigated.
41. Having accepted all her adverse findings and concerns at face value, President Motlanthe discounted her conclusion that I had not been shown to be unfit for office and should be restored to it, by distorting her conclusion in three ways.
42. He firstly latched on to the fact that Dr Ginwala had concluded that government had failed to substantiate "the reasons given for the suspension" and that I should thus be restored to office. I have already shown that Dr Ginwala clearly meant that government had failed to substantiate any of the charges against me, that is, the reasons they advanced in the enquiry in justification for my suspension. President Motlanthe however misconstrued this statement and, on the basis of his distortion of it, accused Dr Ginwala of misconstruing her mandate. He makes this clear on page 655 in paragraph 14 of his answer:
"I submit that Dr Ginwala misconstrued her mandate as set out in the Terms of Reference. Her mandate was to determine the fitness and propriety of the applicant to hold office and not to determine the appropriateness of his suspension. Dr Ginwala clearly conflated the suspension and grounds for removal from office."[7]
43. But that was clearly not so. Dr Ginwala did not confine her enquiry to the reasons President Mbeki had originally advanced for my suspension. She enquired into and dismissed all the grounds upon which government contended before her, that I was unfit for office. President Motlanthe could not have misunderstood her report on this score if he had read it with any care at all.
44. President Motlanthe secondly says on page 696 in paragraph 97.3 of his answer that he rejected Dr Ginwala's conclusion because it "was not justified on the basis of the adverse findings made by her". But she had rejected all the grounds upon which government contended that I was unfit for office. It was thus inevitable that she should come to the conclusion that I was fit for office and should be restored to it. President Motlanthe rejected her conclusion on the basis of the further concerns she expressed about matters falling beyond the scope of her enquiry upon which I had not been called upon to defend myself. Dr Ginwala correctly made this distinction because it would have been quite unfair to make adverse findings about my fitness for office on the basis of matters beyond the scope of her enquiry. President Motlanthe rejected her conclusion only because he wrongly failed to draw this distinction.
45. President Motlanthe thirdly says on page 696 in paragraph 97.3 of his answer that he rejected Dr Ginwala's conclusion because she "had no authority to make such a recommendation". But this contention is quite unfounded. As appears from Dr Ginwala's Terms of Reference annexure 302 at 304 paragraph 2, her primary mandate was to enquire into and determine my fitness for office. She enquired into all the grounds upon which government contended that I was not fit for office and rejected all of them. It was thus inevitable that she should conclude that I was fit for office and should be restored to it. President Motlanthe's suggestion that Dr Ginwala had no authority to make this recommendation, is thus entirely fallacious.
46. As appears from President Motlanthe's letter removing me from office on 8 December 2008 annexure 563 at 567, the factor that apparently persuaded him to remove me from office, was his understanding of the following conclusion Dr Ginwala expressed on her concern about my "two weeks - one week" conversation with President Mbeki in her report annexure 306 at 519 paragraph 357:
"Had these facts 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. However, these were not the reasons put forward by government."
47. President Motlanthe correctly noted in his letter, that "the facts" on which Dr Ginwala based this conclusion, were those described in her report annexure 306 from 517 in paragraphs 352 to 356. They were her comments on my "two weeks - one week" conversation with President Mbeki.
48. President Motlanthe's understanding of Dr Ginwala's conclusion is set out in his letter annexure 563 at 567:
48.1. He interpreted Dr Ginwala's conclusion to mean, "that there was a real and legitimate basis for Advocate Pikoli to be suspended (albeit that this was not raised as a ground at the time)".
48.2. He then inferred from this understanding of Dr Ginwala's conclusion,
- that "by necessary implication his conduct in relation to, in particular, national security issues, indicated a clear lack of insight" and
- that "by further necessary implication", this lack of insight "rendered him a person not fit and proper to hold the position of National Director of Public Prosecutions".
49. But President Motlanthe clearly misunderstood Dr Ginwala's conclusion to mean "that she had concluded that there was a real and legitimate basis for Advocate Pikoli to be suspended". Dr Ginwala did not come to any such conclusion at all. She made it clear that she did not in fact come to such a conclusion for two reasons. The first was that it had not been shown that my conduct "held a real risk of undermining national security". The second was that this concern about my conduct was "not the reasons put forward by government", that is, it fell beyond the charges government had advanced against me and thus beyond the scope of Dr Ginwala's Enquiry.
50. President Motlanthe responds to this criticism from page 689 in paragraphs 85 to 87 of his answer. But it is clear from his response that he indeed misconstrued Dr Ginwala's concerns:
50.1. He concedes on page 690 in paragraph 86.3 that Dr Ginwala did not find that my conduct had indeed created a security risk but now contends that she had found "that it had the potential to do so". But she did not make any such finding. It was in any event not a matter within the scope of her enquiry and was never investigated.
50.2. He says on page 690 in paragraphs 87.2 and 87.3 that I am wrong when I say that this complaint had never been part of government's case against me. But the only reason he advances for this contention is that Dr Ginwala's findings in paragraph 17 of her report "are clear and unambiguous". But this is a non sequitur. The fact is that the charges government advanced against me which defined the scope of the enquiry before Dr Ginwala, did not include a complaint about my "two weeks - one week" conversation with President Mbeki. Dr Ginwala recognised as much in paragraph 17 of her report by discounting this concern precisely because it was "not among the reasons put forward by government before this enquiry".
51. By misconstruing Dr Ginwala's report in this way, President Motlanthe elevated her concern about my "two weeks - one week" conversation with President Mbeki to the principal ground for my removal from office by misconstruing it and by ignoring Dr Ginwala's own reservation about it. The fact of the matter is that it was not part of the charges against me and I was never called upon nor afforded a proper opportunity to rebut it.
He used her concerns as a springboard
52. Having discounted Dr Ginwala's conclusion and distorted the import of her concern about my "two weeks - one week" conversation with President Mbeki, he used it as a springboard for his inferential reasoning to come to his conclusion that I was unfit for office. It formed the basis of his inferential leaps by which he concluded,
- that "by necessary implication his conduct in relation to, in particular, national security issues, indicated a clear lack of insight" and
- that "by further necessary implication", this lack of insight "rendered him a person not fit and proper to hold the position of National Director of Public Prosecutions".
53. These two general and far-reaching inferences were simply not justified on the basis of President Motlanthe's own reasoning that I had been wrong in not immediately acceding without question, to President Mbeki's request for a delay of two weeks.
54. I accordingly submit that President Motlanthe's use of Dr Ginwala's report to justify the opposite conclusion that I was no longer fit for office, was based on a distortion and manipulation of her report which was quite unjustified.
MY "TWO WEEKS - ONE WEEK" CONVERSATIONS WITH PRESIDENT MBEKI
55. I submitted in the previous chapter that President Motlanthe distorted and manipulated Dr Ginwala's report to justify my removal from office principally on the basis of the concerns Dr Ginwala expressed about my "two weeks - one week" conversations with President Mbeki. For purposes of that discussion, I accepted Dr Ginwala's report at face value. But it is not admissible as evidence of the proof of its content. I submit in this chapter that Dr Ginwala was wrong in the concerns she expressed about those conversations and acted unfairly in expressing them at all.
56. The run-up to my "two weeks - one week" conversations with President Mbeki, the conversations themselves and their aftermath, are described in the following evidence before this court:
56.1. In my founding affidavit, I described the run-up to the conversations from page 65 in paragraphs 147 to 167, the conversations themselves from page 75 in paragraphs 168 to 169, their aftermath from page 76 in paragraphs 170 to 185 and their significance from page 81 in paragraphs 186 to 229 and from page 107 in paragraphs 238 to 240.
56.2. President Motlanthe has no knowledge of the facts relevant to these conversations. He makes this clear from page 685 in paragraphs 79 to 81 of his answer. He merely debates their significance from page 686 in paragraphs 81 to 92 and from page 699 in paragraphs 101 to 102.
56.3. President Mbeki deals with the run-up to the "two weeks - one week" conversations with President Mbeki from page 712 in paragraph 17 and from page 719 in paragraphs 24 to 28, with the conversations themselves from page 721 in paragraphs 29 to 31, with their aftermath from page 723 in paragraphs 32 to 34 and with their significance from page 725 in paragraphs 35 to 39.
56.4. Reverend Chikane deals with the run-up to the conversations from page 748 in paragraphs 10.1 to 10.6, the conversations themselves from page 750 in paragraphs 10.7 to 10.11, their aftermath from page 742 in paragraph 7 and their significance from page 752 in paragraphs 10.11 to 10.14.
56.5. Ms Mabandla was not present during these conversations and only makes a few comments peripherally relevant to them from page 734 in paragraphs 5 to 8 of her answer.
57. I submit with respect for the reasons that follow that the concerns Dr Ginwala expressed about these conversations and President Motlanthe's decision to remove me from office on the basis of those concerns, were unjustified because,
- the complaint was not justified;
- the complaint was not credible;
- I was not given a fair hearing on the complaint, and
- the complaint in any event did not render me unfit for office.
The run-up to the conversations
58. Both President Mbeki[8] and Reverend Chikane[9] complain that I only told them that the attempts at co-operation with SAPS had failed and that the DSO had decided to obtain warrants for Mr Selebi's arrest and for searches of his home and offices, after the warrants had been issued. But I submit with respect for the reasons that follow that their complaints are not justified.
59. It must be borne in mind that my responsibility in terms of s 179(6) of the Constitution and s 33(2) of the NPA Act, was to report to the Minister. President Mbeki indeed repeatedly makes the point,
- that my "reporting line was to the Minister of Justice and Constitutional Development as the responsible Minister";[10]
- that "the NDPP does not report to the President but to the Minister of Justice and Constitutional Development"[11], and
- that it is the Minister's responsibility "to provide me with all necessary information to enable me to take proper and informed decisions that affect the interests of the country".[12]
60. As long ago as 19 March 2007, I submitted a memorandum to the Minister in which I reported to her that SAPS were not co-operating with the DSO in the Selebi investigation.[13] I concluded by saying that "We will have no alternative but to seek the assistance of the courts to obtain the relief we require."[14]
61. In my memorandum to the President on 7 May 2007[15] I described our frustrations with the lack of co-operation from SAPS and appealed to him "as a last resort". I graphically made the point that, if SAPS did not co-operate, the DSO would have to resort to search warrants which "would mean that they would physically enter the premises of the police and the home of the Commissioner, inspect items and seize anything that might have a bearing on this case".[16]
62. It was in response to this appeal that President Mbeki directed SAPS to co-operate with the DSO on 9 May 2007. It was clear to all at the time that this was a last attempt at co-operation and, if it did not work, the DSO would obtain the evidence they sought from SAPS by search warrant.
63. Pursuant to President Mbeki's directive, the investigating team met with SAPS on 18 May 2007, 23 May 2007, 4 June 2007 and 6 June 2007. They reported to me that SAPS was as recalcitrant as ever. On 4 June 2007 Commissioner Williams of SAPS even challenged the DSO to "Take the legal route, go to the High Court, I am not handing over documents".[17]
64. Mr McCarthy reported to me that he had met with President Mbeki and Reverend Chikane on 27 May 2007 and briefed them in detail on the progress with the Selebi investigation and particularly on the difficulties the DSO were still experiencing in securing full co-operation from SAPS.
65. On 25 June 2007 the investigating team led by Advocate Nel and I met with the Minister to brief her on the investigation. Advocate Nel led the briefing. He gave the Minister a full account of the investigation to date and outlined how SAPS had refused to co-operate fully with the DSO. He described the urgent steps that needed to be taken to secure further information and that this would necessitate an application for search warrants. He made it clear that a decision had been made to prosecute Mr Selebi and that the DSO was essentially tying up loose ends in the investigation and preparing for an arrest coupled with a search of Mr Selebi's residence and the SAPS head office.
66. The Minister did not raise any reservations about our intended cause of action. She said she regarded it as a crisis that will shake the foundation of the country. She urged us not to have a long drawn-out trial and to resolve matters as quickly as possible.
67. I reminded the Minister of this briefing in my letter to her of 19 September 2007, annexure 277 at 279:
"At this meeting it was stated clearly that a decision had been made to prosecute Mr Selebi and that the DSO was essentially tying up loose ends in the investigation, and preparing for an arrest coupled with a search of Mr Selebi's residence and the SAPS head office.
At this meeting you raised no reservations about the intended cause of action. As a matter of fact, I requested that you seek an audience with the President to appraise him of the intended cause of action in the matter. You, in turn, suggested that I should rather brief the President on my own. This gave me a clear indication that you were in agreement with the intended cause of action."
68. The Minister has never disputed the accuracy of this account of the outcome of the briefing on 25 June 2007.
69. Shortly after the briefing, my mother became very ill and I had to return to our family in the Eastern Cape. My mother passed away as a result of which I was out of the office for most of July until 6 August 2007.
70. While I was out of the office, I requested Advocate McCarthy to report the recent developments to the President. On my return to the office, Advocate McCarthy gave me a written report dated 5 August 2007 on a variety of matters that had occurred during my absence. Annexure 266 is an extract from the report. As appears from annexure 267, Advocate McCarthy reported that he had met Reverend Chikane and had briefed him on the DSO's failure to obtain co-operation from SAPS. Reverend Chikane had indicated to him that he would arrange for me to see the President the following week.
71. Reverend Chikane confirmed in his evidence in the Ginwala Enquiry that,
"At one stage the Head of the DSO came and said Well we have problems, but the National Director for Public Prosecution would want to see the President. I raised questions about the problems."[18]
72. I asked my office on 8 August 2007 to arrange an urgent meeting with the President. They reported to me that they made repeated attempts to set up such a meeting from 8 August until 12 September 2007 but were unsuccessful in doing so.
73. On 11 September 2007 I met the Minister and told her of the warrant for Mr Selebi's arrest. I asked her to inform the President of this development and to arrange for me to meet the President. She agreed to do so. She did not raise any objection or reservation about the imminent arrest and prosecution of Mr Selebi.
74. I reported to the President that we intended to proceed with the execution of the Selebi warrants when I met him on 15 September 2007. I deal with our conversations on that occasion in the section below.
75. I submit with respect that this history shows that I informed the Minister of the decision to proceed with the application and execution of the warrants on 25 June 2007, Mr McCarthy informed Reverend Chikane of this decision during my absence from the office in July or early August 2007 and that I again told the Minister of it on 11 September 2007. It was their duty to keep the President abreast of these developments. I had every reason to assume that they had discharged their obligations to do so. I in any event also tried to see the President from 8 August 2007 but only succeeded in doing so on 15 September 2007. Even at that stage, I was still in full control of the warrants. If the Minister, Reverend Chikane or the President had raised any good reason not to proceed with their execution, I would still have been able to accommodate it.
76. President Mbeki complains that I should have informed him earlier and says on page 726 in paragraph 35.2 of his answer that, if I had done so, "I would not have been reduced to bargaining with the applicant to afford me more time in the interests of the country". But this is a misconception for the following reasons:
76.1. I did everything reasonably within my power and in any event went further than I was required to do, to keep the Minister and the President informed at all times.
76.2. I briefed the Minister and Mr McCarthy briefed Reverend Chikane on the DSO's plan to go ahead with the execution of the warrants. It was their duty to keep the President informed. If he did not know about the plans, then it was because they had failed in their duty to do so and neither of them explain why they failed to do so.
76.3. I remained in full control of the execution of the warrants. If the President had raised any good reason not to proceed with their execution, I could and would have done so.
77. On Saturday 15 September 2007 I met with President Mbeki and Reverend Chikane:
77.1. I told them that the DSO had obtained warrants to arrest Mr Selebi and search his home and offices. The President was surprised and said that he was unaware that SAPS had refused to co-operate. I was in turn surprised that he did not know of this development because we had reported it to the Minister when we briefed her on 25 June 2007, I had understood from Advocate McCarthy that he had reported it to Reverend Chikane in my absence from the office during July and early August 2007 and I had again reported it to the Minister on 11 September 2007.
77.2. The President asked me to suspend the execution of the warrants for two weeks to allow him to make the necessary arrangements for their execution. I said that two weeks was too long but that I would suspend them for one week. The President did not say anything to suggest that a week was not enough.
77.3. Reverend Chikane asked me to prepare a full report for the President. I undertook to do so overnight.
78. I prepared a report to the President overnight. Advocate McCarthy and I met him and Reverend Chikane again the following day, Sunday 16 September 2007:
78.1. Annexure 268 is a copy of my report to the President. I gave him a brief synopsis of the investigation and its outcome and concluded by saying that the execution of the warrants was imminent.
78.2. The President again suggested that I delay the execution of the warrants for two weeks. I repeated what I had said the day before, that two weeks were too long but that I would suspend the execution of the warrants for a week. The President asked me whether I knew "how angry the police are" and that some police officers were "prepared to defy any court order". I told the President that I failed to understand why that should be so because our investigation was directed at particular individuals and not against SAPS as an institution. The President did not take this issue any further.
78.3. The President turned to Reverend Chikane and asked him to convene a meeting of the National Security Council ("NSC") to brief them on the matter. He asked me whether I would attend such a meeting. I agreed to do so. We now know from President Mbeki's affidavit that the NSC met, but I was not invited to the meeting.
79. President Mbeki deals with my account of these conversations from page 721 in paragraphs 29 to 31 of his answer. I point to the following features of his response:
79.1. President Mbeki confirms that we indeed had the "two weeks - one week" conversations on the weekend of 15 and 16 September 2007. He does not explain why neither he nor government ever raised it at any time before or during the Ginwala enquiry. He does not explain why senior counsel for the government put to me in cross-examination and then submitted to Dr Ginwala that there had never been such conversations and that my evidence about it was a contrived fabrication. That version could only have come from President Mbeki or Reverend Chikane. Neither of them take responsibility for it or make any attempt to explain it.
79.2. President Mbeki's account of the conversations indeed confirms mine in every material respect. He merely adds a gloss on page 723 in paragraph 30.2 of his answer by saying that he specifically advised me that, given sufficient time, he would put in place mechanisms that would facilitate the arrest of Mr Selebi and the search of the police headquarters. He never said anything of the kind. I understood however that his request for a two week suspension was to facilitate the execution of the warrants. The difference between us is accordingly small.
79.3. The most significant feature of the conversations are common cause between us, it is that he never made any attempt to explain why one week was not enough and why two weeks were required for him to do whatever he deemed necessary to facilitate the execution of the warrants. He asked for two weeks. I offered a week instead. He never said that a week was not enough or explained why that should be so. He created the clear impression that, although he would have preferred two weeks, a week would do.
79.4. President Mbeki concedes on page 722 in paragraph 30.1 that he "did not take the matter of the warrants further". He goes on to say that he did not do so because I "was clearly determined to execute them" and "was not prepared to compromise". But these assertions are not based on any underlying facts. They are indeed contradicted by the facts which are common cause. President Mbeki asked me to suspend the execution of the warrants for two weeks. I immediately agreed to suspend them for a week without seeking any further justification for it. My first response was accordingly to offer a compromise. President Mbeki seems to have taken offence merely because I did not immediately accede to his request in full without demur.
80. Reverend Chikane deals with these conversations from page 750 in paragraphs 10.7 to 10.14 of his answer:
80.1. The most significant feature of his account, is that he now admits that President Mbeki and I had the "two weeks - one week" conversations. He does not explain why government failed to raise it at the time of my suspension or at any time thereafter, why government made no mention of it in the charges they levelled against me in the Ginwala Enquiry, why he did not mention it in his two affidavits in the Ginwala Enquiry, why he did not mention it in his evidence in the Ginwala Enquiry and why counsel for the government put it to me and argued in the Ginwala Enquiry that no such conversations ever took place.
80.2. Reverend Chikane says on page 751 in paragraph 10.8 that he was surprised to hear that the warrants had been obtained because he did not know that SAPS had refused to hand over the documents that DSO sought from them. He does not explain however why that should be so and particularly why I should be blamed for it, in the light of our full briefing to the Minister on 25 June 2007, Mr McCarthy's report to him at the end of July or early August 2007 and my report to the Minister of 11 September 2007.
80.3. Reverend Chikane makes gratuitous and insulting assertions about my "attitude" on page 751 in paragraph 10.9 and on page 752 in paragraph 10.11. He does however not advance any facts to justify his insults. They are mere bald insults without any foundation.
80.4. My attitude at the time was on the contrary that I was acutely sensitive to the need for the President to be placed in a position to take whatever steps necessary to protect the national interest and avoid embarrassment to the country. I made this clear during my meetings with the President and Reverend Chikane over the weekend of 15 and 16 September 2007. If there was any misunderstanding in this regard, I in any event cleared it up in my letter to the Minister a few days later on Wednesday 19 September 2007 when I said the following:
"A possible investigation and arrest of the National Commissioner of SAPS would clearly affect the national interest, and it was vital that the President be placed in a position to take whatever steps necessary to protect the national interest or avoid embarrassment to the country."[19]
81. The most significant feature of the version of the "two weeks - one week" discussions President Mbeki and Reverend Chikane now advance, is however that it is now clear even on their own version, that President Mbeki suspended me to stop or at least delay the imminent arrest and prosecution of Mr Selebi. This is of crucial significance because government never advanced this as a reason for my suspension and indeed vehemently persisted in their denials of it from the time of my suspension until the end of the Ginwala Enquiry. They offer no explanation for their conduct in this regard. I will elaborate on it in the next section.
82. I submit for the reasons that follow that this complaint can in any event not be taken seriously. If there were any substance to it, government would have raised it from the outset. The fact that they never did so, can only mean that they never considered it to be a real complaint. It was a contrived afterthought when all else had failed.
83. I described government's failure to raise this complaint from page 94 in paragraph 218 of my founding affidavit. Neither President Mbeki nor Reverend Chikane advance any credible explanation for their failure to raise the complaint sooner than they did. On the contrary, it now appears even more inexplicable in the light of their answers, why they failed to raise it sooner. It reinforces my submission that it is a contrived afterthought.
84. If President Mbeki thought that he could not make the necessary arrangements in a week and if there was a risk that national security would be compromised, he would have discussed it with me in our meetings on the weekend of 15 and 16 September 2007. It would have been irresponsible for him not to do so. But he never did. His failure to do so made it clear that, although he would have preferred two weeks, a week would do. If that was not the case, he would have said so.
85. We concluded our discussions that weekend on the understanding that Reverend Chikane would call a meeting of the NSC and that I would be invited to address them. It would have been a further occasion to address any security concerns and to extend the week if it was necessary to do so in the interests of national security. But nothing came of this arrangement. President Mbeki deals with it on page 727 in paragraph 36.2 of his answer but does not explain why he did not follow up on his original suggestion that I attend the NSC meeting. If he was truly concerned to reconcile my duties as NDPP on the one hand and such security concerns as he might have had on the other, his suggestion that I attend the NSC meeting would have been a sensible one.
86. If President Mbeki believed that my refusal to afford him two weeks posed a risk to national security, he would have raised the matter in his letter to the Minister on Monday 17 September 2007, annexure 273. Instead he merely sought information "regarding the intended arrest and prosecution of the National Commissioner" to "enable me to take such informed decisions as may be necessary with regard to the National Commissioner". He deals with this issue on page 728 in paragraph 36.3 of his answer but fails to address my point that his letter belies his current contention that my refusal to afford him two weeks posed a risk to national security.
87. In her letter to me on Tuesday 18 September 2007, the Minister ordered me not to proceed with the arrest and prosecution of Mr Selebi until she had satisfied herself that there was sufficient evidence to do so. If she had any reservations about the security risks created by the impending arrest and prosecution, she would have said so in this letter. It would have been a far more legitimate basis to seek a delay of the arrest and prosecution than her insistence that she should first satisfy herself of the justification for it. Neither President Mbeki nor the Minister offer any explanation why she tried to stop the arrest and prosecution of Mr Selebi on spurious grounds if indeed there were far more compelling and legitimate reasons to delay the arrest and prosecution at the time.
88. If President Mbeki was concerned about any risk to national security, he would have raised it with the Minister. Whatever misunderstanding there might have been after my discussions with President Mbeki over the weekend of 15 and 16 September 2007, would have been cleared up by my letter to the Minister on 19 September 2007. I made it clear in the passage I quoted above, that I was indeed acutely sensitive to the need for the President to be in a position to take whatever steps necessary to protect the national interest or avoid embarrassment to the country.[20] Neither President Mbeki nor the Minister explains why they did not respond to this letter by explaining to me that more time was required for the President to do these things. They would clearly have done so if it was their concern at the time.
89. When the Minister asked me to resign on Sunday afternoon 23 September 2007, she did not suggest that it had anything to do with my failure to allow President Mbeki enough time to create an enabling environment. She would clearly have done so if it was in fact the reason for her request. She would, if that were so, have tried to persuade me to allow more time for an enabling environment to be created before calling on me to resign as a last resort.
90. When the President suspended me on Sunday evening 23 September 2007, he did not say or suggest in our meeting or in his letter of suspension annexure 297, that it had anything to do with my failure to accommodate the need for an enabling environment. President Mbeki now says that he did not mention it in his suspension letter because he knew that an enquiry would be instituted "during which all the relevant matters that I relied upon to question the applicant's fitness and propriety would be set out and substantiated in detail". But this explanation is clearly not plausible:
90.1. President Mbeki would now have it that the immediate and primary reason for my suspension, was that the imminent arrest and prosecution of Mr Selebi would jeopardise national security. It is inexplicable on his own version, if that was so, why he didn't mention it in his letter of suspension. He does not explain why he chose instead to raise other far more mundane issues long gone than the one which he now says actually motivated him to suspend me.
90.2. His explanation that he refrained from mentioning it because "all the relevant matters that are relied upon to question the applicant's fitness and propriety would be set out and substantiated in detail" in the Ginwala Enquiry, is in any event contradicted by the subsequent events. Government never raised any complaint about the "two weeks - one week" discussions at all. It reinforces my submission that it is a contrived afterthought.
91. Government's subsequent press statements of my suspension, gave a false reason for it and made no mention of my failure to allow the President more time to create an enabling environment. Reverend Chikane gives a spurious explanation for it from page 742 in paragraph 7 of his answer. His public statement of 24 September 2007 reinforced the government's official statement the day before, that I had been suspended because of the irretrievable breakdown of my relationship with the Minister. That was a false explanation. It had nothing to do with the real reason for my suspension. Reverend Chikane does not give any explanation for putting up a false explanation and not mentioning any concern about the imminent arrest and prosecution of Mr Selebi and the security risks that it entailed. Even if they did not wish to disclose the true reason for my suspension, it does not explain why they put up a false one.
92. President Mbeki's explanation that he failed to mention this matter at the time because he assumed that it would be canvassed in the Ginwala Enquiry, is further contradicted by Dr Ginwala's Terms of Reference. President Mbeki says on page 710 in paragraph 10 of his answer that he prepared the Terms of Reference. The Terms of Reference annexure 302 described Dr Ginwala's mandate at 304 in paragraph 2. It repeated the complaints raised in President Mbeki's letter of suspension. It made no mention of any security risks posed by the planned arrest and prosecution of Mr Selebi. President Mbeki does not explain, if that was the immediate and principal reason for my suspension, why he failed to mention it even in Dr Ginwala's Terms of Reference.
93. Government's founding submission to Dr Ginwala in which they formulated their complaints against me annexure 991, did not make any complaint on this score. It belies President's Mbeki's statement on page 712 in paragraph 13 of his answer that the complaints government ultimately relied upon in support of the contention that I was unfit for office "were set out in the submissions and affidavits filed on behalf of the government and supplemented by evidence led at the enquiry". This statement is true as far as it goes but highlights the fact that the complaint about the "two weeks - one week" conversation is a contrived afterthought.
94. Government's affidavits filed in support of their complaints including the two affidavits by Reverend Chikane annexures 1046 and 1050, made no mention of this complaint at all. Reverend Chikane does not give any explanation for his failure to do so. It again belies President Mbeki's statement on page 712 in paragraph 13 of his answer that the complaints ultimately relied upon in support of the contention that I was not fit for office, "were set out in the submissions and affidavits filed on behalf of the government and supplemented by the evidence led at the enquiry". He does not explain why this complaint was never raised.
95. Government did not even raise this complaint in their original heads of argument based on the affidavits they had submitted in support of their case against me.
96. When I gave evidence at the Ginwala Enquiry, senior counsel for the government put it to me in cross-examination that my evidence of my "two weeks - one week" conversations with President Mbeki was a fabrication:
"Oh no Mr Pikoli we are saying there was no mention of two weeks or one week in that conversation, that's the dispute. And we are saying to you this is a recent fabrication that surfaced when you started giving your evidence-in-chief."[21]
97. This instruction could only have come from President Mbeki or Reverend Chikane. Neither of them make any attempt to explain it.
98. After the completion of my cross-examination in the Ginwala Enquiry but before commencement of my re-examination, my counsel noted that government had disputed my evidence on the real reasons for my suspension but had failed to say what the real reasons were. He invited government to place on record what they said the real reasons for my suspension were. If it is true that my suspension was precipitated by the planned arrest and prosecution of Mr Selebi, government would have said so. But even at this late stage, they declined to say what it was and instead accused my counsel of "playing games":
"Pikoli's counsel: Thank you Madam Chair, just before I start may I address an invitation to the state and that is this. Mr Pikoli testified to what he says were the real reasons for his suspension, namely to impede the investigation and prosecution of Mr Selebi. I understood very clearly from the state's cross-examination that they challenge that evidence and dispute it. But what they haven't done is to put to Mr Pikoli what they say the real reasons were, so that he is able to deal with them.
Of course they need not do so, but we will argue at the end of the day that if they fail to do so, then an inference should be drawn against them, that they are not in a position to contest his explanation for his suspension. And I therefore, before I proceed with the re-examination, just want to address an invitation to the state to tell us what they say the real reasons were for Mr Pikoli's suspension.
Government's counsel: We will respond and say (Mr Pikoli's counsel) is playing games, Chair."[22]
99. In their closing submissions in the Ginwala Enquiry, the government persisted in their contention that my evidence of the "two weeks - one week" conversations with President Mbeki was a fabrication. Annexure 1074 is an extract from their closing submissions. They said the following in 1075 in paragraph 159:
"We accordingly submit that the NDPP's testimony to the effect that there was a discussion of time periods between him and the President before the warrants were executed is a contrived afterthought, fabricated for the first time during his oral testimony to mitigate for the fact that he went to the President with a fait accompli - unwavering in his stance - that they had warrants and that they were going to act on them. Had this interchange about time periods taken place between the NDPP and the President, he would unquestionably, at the very least, have sharply raised it in his answering affidavit."
100. I accordingly submit that the complaint ultimately relied upon for my removal from office, was a false complaint. If there had been any substance to it, President Mbeki would have raised it from the outset, Reverend Chikane would not have misled the public about it, President Mbeki would have mentioned it in Dr Ginwala's Terms of Reference, government would have raised it in their complaints against me and in the evidence filed in support of it and government would not have disputed it to the bitter end in the hearing before Dr Ginwala. This inference is moreover fortified by the fact that neither President Mbeki nor Reverend Chikane offers any other credible explanation for this conduct.
101. I must make it clear at the outset that I accepted at the time and still do, as I put it in my letter to the Minister on 19 September 2007, that it was "vital that the President be placed in a position to take whatever steps necessary to protect the national interest or avoid embarrassment to the country" flowing from the arrest and prosecution of Mr Selebi.[23] It is still not clear however why the respondents suggest that the risk was so dire and why a week was not enough for the President to do whatever needed to be done to address it.
102. The respondents do not adduce any evidence that the execution of the Selebi warrants posed any risk that could not be adequately addressed within a week. President Mbeki and Reverend Chikane go no further than to recount bald suggestions of such a risk which they say they mentioned or considered at the time of our meetings on 15 and 16 September 2007.[24] President Mbeki is certainly wrong when he suggests today that he mentioned at the time that there was a risk of "a potential shootout" between the DSO and SAPS,[25] that "national security would be compromised plunging the country into turmoil"[26] or that it would "compromise national security".[27] Be that as it may, he goes no further today than to say that he said and thought those things at the time. He does not offer any evidence in substantiation of it.
103. Because they had failed to do so, I am unable to address their contentions in this regard in any meaningful way. I can say however that the suggestion of a risk of "a potential shootout" between the DSO and SAPS which would compromise national security "plunging the country into turmoil", is quite unfounded for the reasons that follow.
104. I knew the DSO well enough to know that they would not engage in or do anything to provoke a shootout with SAPS:
104.1. They were bound in terms of s 1(c) of the Constitution to uphold the rule of law.
104.2. They were obliged in terms of s 198(c) of the Constitution to pursue national security "in compliance with the law".
104.3. They were required in terms of s 198(5) of the Constitution to "act ... in accordance with the Constitution and the law".
104.4. They were required in terms of s 32(1)(a) of the NPA Act to carry out and perform their duties and functions "in good faith and without fear, favour or prejudice and subject only to the Constitution and the law'.
104.5. Their leadership had sworn oaths of office in terms of s 32(2) of the NPA Act to "uphold and protect the Constitution and the fundamental rights entrenched therein and enforce the law of the Republic without fear, favour or prejudice and, as the circumstances of any particular case may require, in accordance with the Constitution and the law".
104.6. They were a highly trained and disciplined force who took seriously their oaths of office and their constitutional and statutory duties to uphold the law. I know that some of them sometimes transgressed the law but, when it happened, swift action was taken against the culprits.
104.7. They were an experienced force often exposed to hostile provocation. They were experts in avoiding and dealing with situations of that kind. They would have done nothing to precipitate a shootout with SAPS.
105. I was less well acquainted with SAPS but had no reason to believe that they would descend to a lawless shootout with the DSO when the latter acted lawfully in the execution of an order of court:
105.1. They were also bound by s 1(c) of the Constitution to uphold the rule of law.
105.2. They were bound by s 198(c) of the Constitution to pursue national security "in compliance with the law".
105.3. They were required by s 198(5) of the Constitution to "act ... in accordance with the Constitution and the law".
105.4. Their very function under s 205(3) of the Constitution was "to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law".
105.5. They were accountable to the Minister of Safety and Security who was responsible for their conduct in terms of s 206(1) of the Constitution.
105.6. They were under the operational control of the National Commissioner appointed by the President in terms of s 207(1) of the Constitution "to control and manage the police service" and he was required to do so in terms of s 207(2) to "exercise control over and manage the police service in accordance with the national policy and the directives of the (Minister of Safety and Security)".
105.7. They were also a disciplined force who generally took seriously their obligation to uphold the Constitution and the law. The suggestion that they would have descended to the level of defying the Constitution, a court order, the President, the Minister of Safety and Security, the National Commissioner and their commanding officers by engaging in a shootout with the DSO while they attempted to execute a lawful order of court, is quite startling. The respondents do not offer any evidence in support of their bald assertion that there was such a risk.
106. Advocate Gerrie Nel who was the Regional Head of the DSO in Gauteng, was in charge of the Selebi investigation. He confirms that the DSO planned to avoid any confrontation when they arrested Mr Selebi as follows:
106.1. They did not regard Mr Selebi as a flight risk. The general practice of the DSO in making an arrest in such a case, was to arrange with the suspect's lawyers to meet at court at a mutually convenient time where a "friendly" arrest is made and bail arranged.
106.2. They had no intention to become embroiled in a confrontation with the arrest of Mr Selebi. Their plan was always to arrange with his lawyers for a "friendly" arrest at court at an agreed time.
106.3. That was indeed what happened until my suspension put a spoke in the wheels of the planned arrest of Mr Selebi. He got wind of the warrant for his arrest. He engaged the State Attorney to represent him. On 28 September 2007 the State Attorney addressed a letter to Advocate Nel, annexure 1077. As appears from the letter, the State Attorney suggested that, if indeed Advocate Nel intended to arrest Mr Selebi, "suitable arrangements ... be made for his appearance in court and his subsequent release on warning or nominal bail". That was precisely the kind of arrangement the DSO had in mind all along and would have made if they had proceeded with the arrest.
106.4. As a result of my suspension, the arrest of Mr Selebi was delayed until after the ANC's Polokwane conference and was only made on 1 February 2008. It was done by a "friendly" arrest at court by arrangement between the Acting NDPP Advocate Mpshe SC and Mr Selebi's attorneys. This arrangement was made by Advocate Mpshe's letter to the attorneys of 16 January 2008 annexure 1079, the attorneys' letter to Advocate Mpshe of 17 January 2008 annexure 1081, the attorneys second letter to Advocate Mpshe of 17 January 2008 annexure 1082, and Advocate Mpshe's reply of 17 January 2008 annexure 1083.
107. Advocate Nel confirms that they would have made sure that the execution of the search warrants did not precipitate a confrontation:
107.1. They planned to arrange that Mr Selebi's lawyers were present when the search warrants were executed. They trusted that the lawyers would have had a moderating influence and would impress upon their client and the members of SAPS that they were obliged to obey the court orders under which the warrants were issued.
107.2. They planned to ask the Minister or the President to intervene on their behalf with SAPS Deputy National Commissioner Pruis to make the necessary arrangements for the smooth execution of the search warrants. Mr Pruis was in command of the SAPS VIP bodyguards. The DSO believed that he would make the necessary arrangements with the bodyguards to ensure that the searches at the SAPS head office and Mr Selebi's home could go ahead without resistance. They planned to invite Mr Pruis to be present during the searches to ensure their smooth execution.
107.3. These arrangements were not yet in place when I was suspended but the DSO would not have gone ahead with the execution of the search warrants until these arrangements or suitable alternative arrangements were in place. In the event, my suspension interrupted the process and the search warrants were not executed.
108. I do not claim to be better able than the President to assess the security risk of the execution of the warrants. I was acutely sensitive to the need to make the necessary arrangements to ensure their safe execution. I was however satisfied that the DSO would not execute them unless those arrangements were in place. The respondents do not offer any evidence in support of their dark suggestions that there was a greater risk than I appreciated at the time. But if there was, President Mbeki would surely have said so and would have engaged with me on the issue. I was always open to persuasion if there was any good reason to allow more than a week for the arrangements to be made. But he never engaged with me on the issue. I submit that the irresistible inference is that the respondents' belated suggestions of a dire security risk, are an unsubstantiated afterthought raised only in an attempt to justify my suspension and dismissal.
The complaint is not justified
109. I submit with respect that, even if there were legitimate security concerns about the execution of the Selebi warrants of which I was unaware and even if President Mbeki required more than a week to address those concerns, the contention that I was remiss in not agreeing to a two week extension and that it reflected on my fitness for office, is quite unjustified.
110. My only sin if I committed one, was to respond to President Mbeki's request for a two week extension, by protesting that it was too long and offering a one week extension instead. The respondents' contention seems to be that I should blindly have agreed to a two week extension without question.
111. But that is with respect unfair. It was my responsibility to ensure that the arrest and prosecution of Mr Selebi proceed without executive interference. I understood and agreed that President Mbeki needed time to create an enabling environment and immediately agreed to allow him a week to do so. He had asked for two weeks but did not suggest that a week was not enough. If there were compelling security considerations which required more than a week to address, then it was his responsibility to say so and explain that he needed more time. I was at all times open to persuasion and would have listened to reason but I could not simply blindly obey his dictates about the manner in which I perform my functions as NDPP. I had a constitutional responsibility to ensure that I did not simply submit to executive dictates on the manner I performed my functions.
112. President Mbeki never engaged with me at all about the adequacy of a week to address such security concerns as he might have had. He had every opportunity to do so and, with respect to him, a duty to do so if indeed a week was not enough to address security issues of real concern. He could have done so during our meetings on the weekend of 15 and 16 September 2007. He could have done so through the Minister when he wrote to her on Monday 17 September 2007 or at any time during that week. If he engaged with the Minister on the issue at all, she would have told him that I had made it clear to her in my letter of 19 September 2007, that I was acutely aware and sensitive to the need for him "to take whatever steps necessary to protect the national interest or avoid embarrassment to the country".[28] He could have done so again when we met on Sunday evening 23 September 2007. But he never did so.
113. The conduct of President Mbeki and the Minister in the course of that week is moreover instructive because it demonstrates so vividly that their concern was to stop the Selebi arrest and prosecution and not to address issues of national security:
113.1. Over the weekend of 15 and 16 September 2007, President Mbeki and Reverend Chikane engaged with me about the justification for Mr Selebi's arrest and prosecution and not the security concerns arising from it beyond our "two week-one week" conversations. They for instance did not even ask me how the DSO intended to execute the warrants or what arrangements they had already made and would still make to ensure that they were executed without incident. This is apparent from the memorandum Reverend Chikane asked me to prepare on Saturday 15 September 2007. He merely asked me to deal with the justification for the arrest and prosecution of Mr Selebi. This is apparent from the memorandum I prepared overnight and presented to President Mbeki and Reverend Chikane the following day, annexure 268.
113.2. Pursuant to our conversations over the weekend, the President wrote to the Minister on Monday 17 September 2007. Annexure 273 is a copy of his letter. As appears from it, he merely asked for information regarding the intended arrest and prosecution of Mr Selebi to enable him to take such informed decisions as might be necessary. He did not ask about the security arrangements that were already in place and would still be made and did not raise any concern about the fact that I had only agreed to suspend the execution of the warrants for one week.
113.3. In her letter to me on Tuesday 18 September 2007 annexure 275, the Minister ordered me to stop the arrest and prosecution of Mr Selebi until "I have satisfied myself that sufficient information and evidence does exist for the arrest of and preference of charges against the National Commissioner of the Police Service". She did not suggest that there were any security concerns about the intended arrest and prosecution of Mr Selebi.
113.4. In my reply of 19 September 2007 annexure 277, I was the one who emphasized that "it was vital that the President be placed in a position to take whatever steps necessary to protect the national interest or avoid embarrassment to the country". If the Minister had any concerns about the security arrangements necessary for the execution of the warrants, she would have raised them in response to this acknowledgment.
113.5. The Minister instead replied on 19 September 2007 annexure 283, by again demanding that I justify the arrest and prosecution of Mr Selebi without raising any security concerns at all.
113.6. I did so in my letter of 19 September 2007 annexure 285. I moreover concluded my letter at 286 by urging the Minister "that we meet as soon as possible to address any queries that you may have".
113.7. The Minister responded on Friday 21 September 2007 in annexure 295, by agreeing to meet me on Sunday 23 September 2007 at 17h00.
113.8. I also called Reverend Chikane to arrange a meeting with the President. He told me on Friday 21 September 2007 that the President would see me on Sunday 23 September 2007 at 19h45.
113.9. My meetings with the Minister and the President on the afternoon and evening of Sunday 23 September 2007 were accordingly both arranged at my request. I asked for the meetings to discuss the planned arrest and prosecution of Mr Selebi with the Minister and the President in the light of the Minister's attempts in the course of the week to stop them. If President Mbeki and the Minister had any security concerns about them, my Sunday meetings with them would have afforded them further opportunities of raising those concerns with me.
113.10. It soon became apparent however that they had already decided to suspend me from office even before the meetings took place. When I met with the Minister she asked me out of the blue to resign because she said there had been a breakdown of trust between us. When I declined her request and told her that both of us knew that there had not been a breakdown of trust between us, she did not dispute it and merely said "Vusi this is all about integrity and one day I will talk".
113.11. When I met with the President shortly thereafter, he knew that the Minister had asked me to resign and that I had declined and merely told me that he would suspend me if I did not resign. The only explanation for my suspension he mentioned was their alleged dissatisfaction with plea bargains and witness immunity arrangements I had made.
113.12. Neither President Mbeki nor the Minister raised any security concerns with me in the course of that week. She attempted to stop the arrest and prosecution of Mr Selebi on other spurious grounds. When I declined, the two of them decided that I should be suspended without discussing it with me at all. When I declined their request that I resign on the Sunday, President Mbeki suspended me without more. Neither he nor the Minister suggested that I was being suspended because of any concerns they had about the security arrangements for the execution of the warrants. On the contrary, both of them raised other spurious grounds for my suspension.
114. I submit in the circumstances that the suggestion that I am unfit for office because I was insufficiently sensitive to the need for President Mbeki to make further security arrangements for the execution of the Selebi warrants, is quite without foundation. It is in the circumstances inconceivable that it was a real concern. But if it was, then it was his duty to raise it with me when he had ample opportunity to do so. He failed to do so again and again and instead suspended me on spurious grounds.
I was not afforded a fair hearing
115. I was never afforded a fair hearing or indeed a real hearing at all, on the accusation that my "two weeks - one week" conversations with President Mbeki reflected on my fitness for the office of NDPP.
116. I have already explained that government never contended that my "two weeks - one week" conversations with President Mbeki reflected on my fitness for office. They did not do so at the time of my suspension or any time thereafter. President Mbeki did not raise it in his letter of suspension annexure 297 or in Dr Ginwala's Terms of Reference annexure 302. Government did not raise it in their original submission annexure 991 which formulated the charges against me. They also did not raise it in any of their affidavits filed in support of the charges. Reverend Chikane did not raise it in either of his two affidavits filed in support of the charges. My "two weeks - one week" conversations with President Mbeki were accordingly not an issue between me and the government at all.
117. On 23 April 2008 Dr Ginwala directed that oral evidence be led. Annexure 1058 is a copy of her ruling. As appears from paragraph 2, her referral to oral evidence was limited to "all issues on which there are disputes of fact". It accordingly did not include my "two weeks - one week" conversations with President Mbeki because they had not been raised at all.
118. I have already explained how I came to mention the "two weeks - one week" conversations in the course of my evidence but even then the government denied that those conversations had taken place at all and persisted in their denial until the very end.
119. I was accordingly never called upon to rebut an accusation that my "two weeks - one week" conversations with President Mbeki reflected on my fitness for office. I did not take advice on it, investigate it or call rebutting evidence on it as I would have done if it had formed part of government's case against me. Because it never formed part of the case I was called upon to meet, a range of issues were not addressed that would have been addressed if it formed part of the case I had to meet such as,
- whether the execution of the Selebi warrants posed security threats and, if so, what they were;
- what arrangements the DSO had already made to address those threats;
- what arrangements the DSO still intended to make to address those threats;
- what further arrangements still had to be made to address those threats, and
- who should make those arrangements and how much time was needed to do so.
120. Despite the fact that I had not been afforded any real hearing on the issue, Dr Ginwala chose to express serious concerns about my conduct relating to the "two weeks - one week" discussions with President Mbeki. She should not have done so because I had never been called upon to meet those charges. But she at least recognised that the issue had not been fully investigated, that there was no evidence that my conduct indeed jeopardised national security and that it would be unfair to make any findings on my fitness for office on this score precisely because it had never formed part of government's case against me.
121. After Dr Ginwala had issued her report, President Motlanthe afforded me an opportunity to respond to it. I did so by way of my submissions of 24 November 2008, annexure 527. I addressed Dr Ginwala's concerns about the "two weeks - one week" conversations from 557 in paragraphs 45 to 50.
122. President Motlanthe however disregarded those submissions. He made that clear in his letter of suspension annexure 564. He said at 566 in paragraphs 11 and 12 that in his view, he was "required" and "obliged" to base his decision on Dr Ginwala's findings. He went on at 567 to make Dr Ginwala's concerns about the "two weeks - one week" conversations the centrepiece of his justification for my removal from office.
123. President Motlanthe now says on page 696 in paragraph 97.2 of his Answer that, contrary to what he had said in his letter of dismissal, he was indeed open to persuasion "if it could be shown that findings were irrational, illogical or not justified on the evidence led" before Dr Ginwala. I have already submitted that it can simply not be true that he was open to persuasion even on this limited basis. But even if he was, he failed to appreciate as Dr Ginwala did, that it was unfair to judge me "on the evidence led" precisely because I was never called upon to rebut a charge arising from the "two weeks - one week" conversations and accordingly did not lead the evidence on it that I would have done if it formed part of government's case against me.
124. I accordingly submit that even on President Motlanthe's current version of the manner in which he approached Dr Ginwala's report and my submissions on them, I was not afforded any real hearing on this issue.
PRESIDENT MOTLANTHE'S ANSWER (see affidavit)
125. President Motlanthe summarises his justification for my removal from office in these paragraphs. I have already dealt with it in my founding affidavit and the opening chapters of this affidavit and will again deal with it when I address the subsequent paragraphs of President Motlanthe's answer.
126. President Motlanthe's statement in paragraphs 14 and 16 that Dr Ginwala misconstrued her mandate and conflated the reasons for my suspension and the grounds for my removal from office, is startling. It is part of President Motlanthe's distortion of Dr Ginwala's report to justify his conclusion quite opposite to that of Dr Ginwala.
127. President Motlanthe says in paragraph 17 that I at no stage "challenged the mandate of the Enquiry to determine such other matters as may relate to (my) fitness and propriety to hold office". This is true as far as it goes. But it is President Motlanthe who challenges Dr Ginwala's interpretation of her mandate and not me. My only reservations go to the nature of the function Dr Ginwala was mandated to perform and not the manner in which she did so.
127.1. It was President Mbeki's prerogative in terms of s 12(6)(a) of the NPA Act, to cause such enquiry into my fitness to hold office as NDPP to be made "as the President deems fit". I accordingly accept that it was competent for him to appoint Dr Ginwala to do so.
127.2. It does not follow however that her findings become binding on the President or on me. On the contrary, they do not even constitute evidence of the truth of their content. The question is accordingly not whether her findings justified my dismissal. The question remains whether I was as a matter of fact no longer fit to hold office as NDPP.
127.3. I accept that Dr Ginwala acted in good faith. It must however be borne in mind that she is not a professional fact-finder and is on the contrary a loyal member of the party of which President Mbeki was the leader at the time of her appointment. She received her mandate from him and performed her functions at his pleasure and for his benefit. Any suggestion that her Enquiry was accordingly "professional" or "independent" is quite out of place.
128. I deny paragraphs 24.3 and 24.4. My removal from office was wrongful and in violation of the constitutional principle of prosecutorial independence. President Motlanthe's unsubstantiated assertions that I regarded myself as above the law and the Constitution and failed to appreciate the constitutional position of the NDPP, is untrue.
129. As appears from Mr Moosajee's affidavit at page 577, the parties are only agreed on what constitutes the record President Mothlanthe submitted in terms of rule 53. His assumption that it "will no doubt be made available to the above honourable court at the hearing of this matter" is not correct. The record generally does not constitute admissible evidence and has not been introduced into evidence by any of the parties
130. I accept that the Ginwala Enquiry was lawfully undertaken. I do not understand President Motlanthe's statements in paragraph 31.4 that I "acceded to the procedure adopted at such enquiry" and that my legal representatives "participated in the formulation thereof". My lawyers and I participated in and co-operated with the Enquiry. It remained no more however than an enquiry President Mbeki caused to be undertaken in terms of s 12(6)(a) of the NPA Act. President Motlanthe was free to use Dr Ginwala's report in whatever way he chose, but it never became any more than merely a report commissioned by the President for his benefit. It never enjoyed any greater status than that.
131. It is quite wrong to say as President Motlanthe repeatedly does for instance in paragraph 31.8, that I embraced Dr Ginwala's findings in my favour but do not accept her findings against me. I was obviously relieved that she held that none of the government's charges against me had been established. I submit that some of the further concerns she expressed about matters beyond the scope of her enquiry, were both wrong and unfair. My views on Dr Ginwala's findings and concerns however do not affect their status at all. They remain the views of a stranger to this application and accordingly do not constitute evidence of the truth of their content.
132. I repeat that the record generally does not constitute admissible evidence and has not been introduced into evidence in these proceedings.
133. President Motlanthe's assertions that Dr Ginwala conducted her enquiry in "an independent and professional manner" is misguided. I repeat that I accept that she acted in good faith. But she undertook the enquiry at the request, subject to the direction and for the sole benefit of the leader of the party of which she was a loyal member. She was accordingly not "independent" by any stretch of the imagination. She was also not a professional fact finder and never pretended to be one.
134. President Motlanthe's interpretation of Dr Ginwala's report is wrong. I have already dealt with it at length in my chapter on his understanding and use of Dr Ginwala's report.
135. I deny President Motlanthe's assertions in paragraph 39.2.
136. I deny President Motlanthe's assertions in this paragraph. I have already dealt with them in my chapter on his understanding and use of Dr Ginwala's report.
137. I have repeatedly dealt with the status of Dr Ginwala's report. It does not constitute admissible evidence of the truth of its content.
138. I deny President Motlanthe's assertions in this paragraph.
139. I deny President Motlanthe's assertions in paragraph 54.2. He misconstrued the Ginwala report. Insofar as Dr Ginwala might have suggested that I did not consider myself accountable to the other arms of government or fundamentally lacked any insight into security issues and the necessity to co-operate with other arms of government, she was in any event not correct.
140. President Motlanthe is quite wrong when he says in paragraphs 54.3 to 54.5 that I was not prepared to acknowledge any deficiencies in my conduct. I am obviously human and I make mistakes. I do not believe however that I did so on this occasion. Even if I did, my mistakes did not render me unfit for office
141. President Motlanthe starts off by acknowledging that he has no knowledge of the facts concerning the searches at the Union Buildings but then proceeds to make assertions about them. I submit with respect that they should be disregarded.
142. President Motlanthe goes on to say in paragraph 59.7 that I now "appear to suggest that the delegation of the execution of the warrants absolves (me) of (my) final responsibility over fundamental issues of access to classified information and security clearance of personnel involved". He makes the assertion based on nothing but his own preconceived misconceptions. It flies in the face of my direct statement to the contrary on page 37 in paragraph 73 of my founding affidavit.
143. I deny President Motlanthe's assertions about my understanding of and attitude to inter-governmental co-operation.
Motlanthe paragraphs 62 and 63
144. I deny President Motlanthe's assertions in these paragraphs about matters of which he confesses to have no knowledge at all.
145. I deny President Motlanthe's assertions in this paragraph. He has no knowledge of the matters upon which they are based.
146. President Motlanthe similarly has no knowledge of these matters. I deny his assertions on them.
147. Dr Ginwala's findings quoted in this paragraph, were with respect not correct. She however at least appreciated that they were based on matters extraneous to the charges in issue before her. President Motlanthe clearly does not have any such appreciation.
148. I have already dealt at length with Dr Ginwala's concerns on matters beyond the scope of her enquiry and President Motlanthe's understanding and use of them. I accordingly deny his interpretation in this paragraph.
149. I deny the allegations in this paragraph.
150. Paragraph 82.2 is quite extraordinary. President Motlanthe purports to give an account of what he has been advised Reverend Chikane would say Mr McCarthy told him when he requested a meeting with the President at the end of July or early August 2007. It is inexplicable that President Motlanthe should depose to what some unknown person has advised him Reverend Chikane would say of what Mr McCarthy had said. His account of it is not even borne out by Reverend Chikane himself.
151. I deny President Motlanthe's assertion in paragraph 86.3 that Dr Ginwala had found that my conduct had the potential to create a security risk.
152. I deny President Motlanthe's interpretation of Dr Ginwala's report. I have already dealt with it at length in my chapter on his understanding and use of the report.
153. President Motlanthe is wrong when he says that Dr Ginwala found that my conduct was "contrary to the interests of national security". She made no such finding.
154. President Motlanthe's approach to Dr Ginwala's report and my submissions on it described in paragraphs 95.1 to 95.4, is incompatible with his letter of 8 December 2008 removing me from office annexure 563. His letter made it clear that he regarded himself bound to base his decision on Dr Ginwala's findings alone.
155. President Motlanthe is quite wrong when he says in paragraph 96.6 that I now seek to impugn the integrity of Dr Ginwala. I never did so and do not do so now. He is the one who accuses her of misunderstanding her mandate, wrongly conflating the issues before her and making a recommendation without authority to do so.
156. I have dealt with these issues in my chapter on President Motlanthe's understanding and use of the Ginwala report and accordingly deny this paragraph.
Motlanthe paragraphs 105 to 108
157. I persist in my submission that President Motlanthe acted with an ulterior purpose. I described the basis of it from page 109 in paragraphs 242 to 248 of my founding affidavit. Since then, Mr Zuma or people acting on his behalf, have indeed persuaded the Acting NDPP to withdraw the criminal charges against him and he has been elected President.
PRESIDENT MBEKI'S AFFIDAVIT (see here)
158. President Mbeki is vague about the nature and extent of the concerns, who reported them, when they were reported and over what "period of time" they were reported to him.
159. It is incomprehensible that President Mbeki would simply have failed to mention them during any one of my numerous very cordial meetings with him between 2006 and 2007. It is unfair and unreasonable that he failed to alert me to concerns reported to him about my conduct and its impact on my fitness for office.
160. The least I expected of him was that he confront me with these concerns as soon as they were reported. It is undisputed that President Mbeki never did so before my suspension. It makes the allegations about "concerns ... over a period of time" having been reported to President Mbeki, unreliable.
161. I deny the remaining allegations.
162. President Mbeki seeks to explain in paragraphs 6 to 8 that he actually suspended me for other unidentified reasons in addition to the two he mentioned in his letter of suspension of 23 September 2007 annexure 297. I submit with respect that this attempt is disingenuous.
163. He says for instance in paragraph 6 that the reasons mentioned in his letter of suspension were mere "examples" given "to avoid a suspension couched in general terms" because it would render his decision to suspend me to "appear devoid of basis of fact" and would accordingly "fail to appraise (me) of a basis for the suspension". But this is a spurious explanation. The letter purported to give the reasons for my suspension. To now suggest that they were merely examples given to me only to avoid an appearance that his decision to suspend me had no basis in fact, is to say that the letter was deliberately designed to mislead. To go on to say that it was done "to appraise (me) of a basis for the suspension" is illogical and dishonest if the letter was specifically designed to mention only some of the reasons for my suspension.
164. President Mbeki goes on to say in paragraph 7 that he did not find it necessary to elaborate on these matters because an enquiry would be instituted "during which all the relevant matters that I relied upon to question the applicant's fitness and propriety would be set out and substantiated in detail". President Mbeki however does not explain why Dr Ginwala's Terms of Reference which, he says, he drafted himself, did not identify all the reasons for my suspension including the one's he kept secret.
165. The respondents' case today, is that the principal reason for my suspension and ultimate dismissal, was the "two week-one week" discussions I had with President Mbeki over the weekend of 15 and 16 September 2007. President Mbeki does not explain, if that was the true reason,
- why it was not mentioned in the Terms of Reference which he drafted himself and
- why it never formed part of the case government advanced against me in the Ginwala Enquiry and
- why the government denied until the very end of the Ginwala Enquiry, that such a conversation had taken place at all.
166. I admit that my reporting line was to the Minister. I however frequently reported to President Mbeki on the progress in the Selebi investigation.
167. I refer to the numerous meetings I held with President Mbeki mentioned in paragraph 150.3 of my founding affidavit. This was also the evidence I gave at the Enquiry, both in my affidavits and in my oral evidence. My evidence was not challenged. That is not surprising. Apart from information relating to the Minister of Safety and Security and Selebi, I did not discuss any other matter relating to high ranking officials with President Mbeki.
168. I first met with President Mbeki in March 2006 to report to him about the initial allegations about Selebi and his role in the Kebble investigation. I related to him the gist of the allegations contained in Mr Stemmet's affidavit and the concerns raised by Ms Charin de Beer in regard to Mr Selebi.
169. I again met with President Mbeki and the Minister during August 2006. I reported on the latest developments in the Big Guys investigation in so far as it related to Mr Selebi. I expressed concerns to President Mbeki about the link between Messrs Agliotti and Selebi.
170. On or about 9 or 10 November 2006, I met with President Mbeki at his official residence in Pretoria and took him through the allegations that were contained in Mr Nassif's affidavit. President Mbeki suggested that I should set up a meeting with Mr Selebi to raise the concerns directly with him. That meeting was set up for 11 November 2006.
171. I again met with President Mbeki on 14 November 2006 to update him about what transpired at the meeting with Mr Selebi on 11 November 2006. I indicated to him that I thought that Mr McCarthy should formally interview Mr Selebi.
172. On 20 November 2006, I met President Mbeki again. I gave him further updates in regard to the Big Guys investigation and the arrest of Mr Agliotti. It was at this meeting that I first asked President Mbeki to intervene and request SAPS to provide information in the docket about the Kebble murder. It was only at that stage that the matter of documents arose in the investigation. My meetings with President Mbeki before this date had not been about assistance with obtaining documents from the SAPS. That issue had not yet arisen.
173. I admit that during my meeting on 20 November 2006 with President Mbeki and Mr Selebi, the latter undertook to give the DSO access to the Kebble docket.
174. I deny that the only subsequent meeting was during May 2007. On 11 March 2007 I met with President Mbeki and the Minister. There I reported that the DSO had been experiencing problems with securing documents from SAPS. I relayed the content of the correspondence that was exchanged between the State Attorney, acting for the SAPS and the DSO.
175. On 7 May 2007 I delivered a memorandum to President Mbeki. It sets out the history of the Big Guys investigation relevant to the allegations against Selebi and how the DSO intended to proceed. Pursuant to that memorandum of 7 May, and on 9 May 2007, at President Mbeki's invitation, Mr McCarthy and I attended a meeting with him, Mr Selebi, and Commissioners Williams, Lalla, Mphego and Tshabalala of SAPS.
176. Except for the above, these allegations are denied.
177. Again, President Mbeki is vague about exactly how many meetings there were with me and when they were held. To the extent that he suggests that not many meetings were held, I deny this.
178. I admit that I had a meeting with President, the Minister and Mr Ngcuka during March 2007, but I deny that the Minister had called for that meeting. President Mbeki invited me to that meeting and advised me that he wanted to explore whether the government was providing the NPA with sufficient support because he was also considering dealing with the NPA in his budget speech.
179. I reiterate that I regularly reported to President Mbeki about the investigation involving Mr Selebi. I admit that at the meeting of 20 November 2006 I asked President Mbeki for assistance in regard to securing the Kebble murder police docket. The SAPS subsequently provided the docket.
180. I again requested assistance from President at the meeting held on 11 March 2007, in order to secure information required for the investigation of Mr Selebi. Even though President Mbeki had suggested to SAPS that they should co-operate, the necessary co-operation was not received. This was communicated by Mr McCarthy to President Mbeki on 27 May 2007 and also subsequently to the DG in the Presidency, Reverend Chikane. Neither was able to secure the co-operation of the SAPS.
181. At the meeting on 16 September 2007, President Mbeki mentioned to me how angry the Police were as well as the fact that they were prepared to defy a court order. I deny the remaining allegations in this paragraph.
182. I deny that President Mbeki asked me to resign at the meeting of 23 September 2007. He told me that he understood from the Minister that she had asked me to resign and I had refused to do so. I confirmed that that was the outcome of my meeting with the Minister.
183. Only one reason was advanced by President Mbeki on 23 September 2007 for my suspension. It was his dissatisfaction with plea bargains and witness immunity arrangements made by me.
184. My suspension letter advanced this as the reason for my suspension. It contained a further reason, namely the breakdown of relations between my office and the Minister's office.
185. I was not advised either in the letter or orally by President Mbeki that additional reasons for my suspension would surface at the Ginwala Enquiry.
186. Except for the above, these allegations are denied.
187. I deny that I selectively read the letter.
188. If this is an attempt to suggest that there were other reasons for my suspension and that government had thought of them, it is unsuccessful. The letter does record that President Mbeki was informed of some matters investigated by he NPA. That could only mean that this information and these matters resulted in the reasons for my suspension. It cannot mean that there were additional reasons for my suspension arising out of this information and these matters. Had that been so, my suspension letter would have described those reasons.
189. When we met on 20 May 2007, President Mbeki did not inform me that he had already considered the necessary steps to be taken in regard to Browse Mole. Nor did he reprimand me for only bringing the report to his attention then. It was clear to me at that stage that President Mbeki had no concerns about my conduct in regard to the Browse Mole report.
190. In fact when I mentioned the Browse Mole report to President Mbeki at the meeting on 20 May 2007, he said that part of what was contained in the report was true. However, the report inter-twined fact with fiction.
191. President Mbeki does not say when it came to his attention that the DSO was not providing full co-operation to the investigation. If he was so concerned about the lack of co-operation from the DSO, it is reasonable to have expected of President Mbeki to reprimand, suspend or institute disciplinary steps against the Head of the DSO, who is appointed by the president. Apart from not doing so, President Mbeki offers no explanation as to why he took no steps to convince the Head of the DSO to provide full co-operation.
192. I deny that I breached the provisions of the National Strategic Intelligence Act, 1994. The NPA is not a State department. In any event, I explained in paragraph 105 of my founding affidavit why I waited until July 2006, before advising the DG's of NIA and SASS. When I met with the DGs of NIA SASS, none of them raised any concerns about the fact that the information was only made available in July 2006.
193. I deny that the allegations in paragraph 150.3 of my founding affidavit are misleading. President Mbeki concedes that we met on a numerous occasions. He is vague about the number of meetings and their dates and times. I have given these details above.
194. It cannot be deliberately misleading that we met for the purpose of my reporting to President Mbeki on the Selebi investigation and its progress. President Mbeki does not dispute that we met before November 2006. That is when the matter of assistance with obtaining documents relevant to the Selebi investigation first arose. Before that, I did not seek assistance with obtaining documents. I met to report to him on the Selebi investigation. I did that because I appreciated the national interest and that of the President in an investigation into criminal conduct on the part of the National Commissioner of Police, who is appointed by the President.
195. President Mbeki's allegation that I would not have reported to him with such regularity is startling. At the Enquiry, government criticised me for failing to inform President Mbeki of the warrants before they were issued. I reported regularly to President Mbeki on the progress of the Selebi investigation because I was aware that it was a matter of national importance that warranted a report to the President.
196. I am surprised by the allegation that President Mbeki has no record of my attempts to meet with him.
197. In my affidavit submitted to the Enquiry (at paragraphs 98 and 99) I stated that attempts were made from August 2007 to set up a meeting with President Mbeki who was not available to meet with me before 15 September 2007.
198. Reverend Chikane's first affidavit to the Enquiry confirms that I sought a meeting with President Mbeki. In his replying affidavit to the Enquiry Reverend Chikane does not dispute my version that attempts were made to meet President Mbeki but that he was unavailable.
199. Except for the above, these allegations are denied.
200. I did not assume that Mr McCarthy advised President Mbeki or Reverend Chikane about the arrest warrants.
201. Here, President Mbeki requires ‘prior notice' to him of the issue of the warrants. That is inconsistent with his earlier attempt to dispute that I reported to him regularly on the progress of the Selebi investigation, because, according to him, there was no reporting line between us.
202. President Mbeki gives no reason for criticising me for advising him of the warrants after they had been issued, but before they were executed. His affidavit does not assist President Motlanthe on this score.
203. This is one of the grounds on which I was removed from office by President Motlanthe. But there is no evidence justifying my removal from office because of my failure to inform President Mbeki about the warrants before they were issued. President Mbeki, who is the one person who would have had a reason to be dissatisfied with me about this matter, fails to provide any reason or any evidence to justify my removal.
204. It is not surprising that President Mbeki fails to advance a reason for his criticism. My failure to inform President Mbeki of the warrants before they were issued was not given as a ground for my suspension in our meeting of 23 September 2007 or in my suspension letter. It was not a ground advanced by government in any public statement released shortly after my suspension. It was not advanced as a ground in any of the affidavits submitted to the Enquiry. It was not a ground advanced by any witness testifying at the Enquiry.
205. I deny that President Mbeki indicated to me that one week was insufficient for him to facilitate the arrest of Mr Selebi. I admit that even on Sunday 16 September 2007, President Mbeki stated that he would prefer two weeks. However, President Mbeki created the impression that it was merely a preference, but if I could only hold off for one week, he could live with that.
206. At no time after the 16 September 2007 meeting, did President Mbeki or the Minister ever suggest that one week was insufficient.
207. Except for the above, these allegations are denied.
208. I deny that President Mbeki offered an explanation for the need to provide an appropriate environment for the execution of the warrants, or that I was not prepared to compromise.
209. I deny further that President Mbeki advised me that, given sufficient time, he would put mechanisms in place to facilitate the arrest of Mr Selebi and the search of the Police Headquarters.
210. Reverend Chikane was present at the meeting between me and President Mbeki. He was also the DG of the office of the Presidency. Yet he did not make this allegation in his affidavits submitted to the Enquiry, or in his evidence at the Enquiry[29]
211. It is quite apparent from the evidence at the Enquiry and from the evidential material before President Motlanthe that my alleged failure to give President Mbeki sufficient time to facilitate the execution of the arrest and search warrants, was not a reason for my suspension.
212. I reiterate the fact that I had arranged to meet with President Mbeki before the warrants were executed, is the clearest indication that I was alive to the need for an opportunity to create an enabling environment for the execution of the warrants. This could have been done by suspending Mr Selebi, meeting with senior members of the SAPS and instructing them to facilitate the smooth execution of the warrants.
213. I admit that I am not entitled to attend meetings of the National Security Council. I point out, however, that I was invited twice to attend meetings of the National Security Council.
214. I questioned why President Mbeki had addressed the letter to the Minister on 17 September 2007, because the information requested in that letter had already been provided by me to him in my letter of 16 September 2007.
215. There is still no explanation from President Mbeki as to why in the light of my letter of 16 September 2007 he wrote the letter of 17 September 2007 to the Minister.
216. I deny that at the meeting of 23 September 2007, President Mbeki requested a further week before executing the warrants and that I refused to grant such request.
217. President Mbeki fails to explain why he feared that the arrest and searches would be executed in a hostile environment. He further fails to explain why Mr Selebi was not suspended and why he did not meet with other senior members of management of the SAPS to ensure that the arrests and searches could be executed in a controlled environment.
218. I admit that President Mbeki knew that the Minister had asked me to resign and that I had refused. President Mbeki told me that he would suspend me if I did not resign. I refused to resign. I was then suspended.
219. President Mbeki did not inform me orally or in my suspension letter that I was suspended because of my failure to allow him an opportunity to create an enabling environment. Government did not give this as a reason for my suspension at the Enquiry. President Mbeki rather obscurely insinuates here that this was a reason for my suspension.
220. There is no evidence that it was. If it were a reason for my suspension, it would have surfaced long before the criticism by Dr Ginwala. The evidence shows that I must have been suspended because I refused to bow to ministerial pressure to stop the Selebi prosecution.
221. My suspension letter, the public statements by government, their affidavits submitted to the Enquiry and their evidence led at the Enquiry, avoided any reference to the Selebi investigation or my refusal to bow to ministerial pressure to stop it. Had that been a justifiable reason for my suspension or evidence of my being unfit for office, it would have surfaced long before Dr Ginwala levied the two criticisms against me. The fact that it did not shows that government knew that it was not a good reason for my suspension or ultimate removal from office.
222. The allegations in paragraph 33.4 in particular are confirmation that I was suspended to prevent the arrest of Mr Selebi or because I refused to bow to ministerial pressure to stop the Selebi prosecution and execution of the warrants.
223. Except for the above, these allegations are denied.
224. President Mbeki does not explain why it was a problem that he was only informed of the warrants after they were issued, but before they were executed.
225. It is significant that when I informed him and the Minister of the issue of the warrants, neither complained that I did not inform them earlier, or that I did not inform them before the issue of the warrants.
226. Except for the above, these allegations are denied.
227. President Mbeki fails to provide the information as to what transpired at the NSC meeting. If there were concerns about the confidential nature of the discussions, he could have offered that information in a separate affidavit addressed only to the court and the legal representatives of the parties.
228. When proceedings were held at the Enquiry relating to confidential matters, the Enquiry continued in camera. No attempt was made to explain what transpired at the NSC meeting. Until today, there is no explanation as to why one week was insufficient or what could have been achieved in a further week.
229. I did not become aware of the letter of 17 September 2007 through the Enquiry. I became aware of it because the Minister mentioned that letter to me when I met with her on 18 September 2007.
230. I deny that President Mbeki's letter of 17 September 2007 was made available to me because I threatened to delay the start of the Enquiry if it were not furnished. As is apparent from the Transcript, my counsel sought a direction that government disclose the letter without any preconditions.[30] I always pushed for the prompt commencement of the Enquiry.
231. Except for the above, these allegations are denied.
232. President Mbeki does not dispute that he did not complain on Sunday 23 September 2007 about my unwillingness to delay the matter for two weeks. It is undisputed that he did not advance that as a reason for my suspension on that Sunday.
233. I do not dispute that the ultimate responsibility for the security of the country lies with the President. If there was a genuine concern that a delay of one rather than two weeks in executing the warrants would result in a security crisis, this would have been pointed out to me and my refusal to delay execution by a further week would have been given as the reason for my suspension.
234. There was a ready mechanism available to President Mbeki to avoid any suspected crisis. He could have suspended Mr Selebi and instructed the senior management of the SAPS to co-operate. These steps were not taken.
235. I deny that I tried to compromise the national security of the country. The mere fact that I approached the President and the Minister before executing the warrants was a clear indication that I was alive to national security issues.
236. I persist in my allegations and contend that paragraph 33.4 of President Mbeki's affidavit is confirmation that I was suspended to prevent the arrest of Mr Selebi or because I refused to bow to ministerial pressure to stop the Selebi prosecution and execution of the warrants.
237. I deny that there was a public perception that I was suspended because of my personal differences with the Minister. There was speculation in the media about the reasons for my suspension. A number of reasons were mooted for my suspension. I attach typical examples of reports in the printed media about my suspension as annexures 1084 to 1092. It is apparent from these reports that it was never suggested that I had been suspended due to personal differences with the Minister.
238. I have no personal knowledge of the discussion between Reverend Chikane and President Mbeki about the contents of the statement. I submit that the reason why the statement was short was that there were no good reasons for my suspension and that the reasons on which government relied were contrived.
239. Reverend Chikane now gives an additional reason why the statement was short, namely his concern for my reputation. He did not mention this in his evidence at the Enquiry. He said the following in evidence:
"I took the deliberate decision that I will not place details of the accusations against Pikoli to the public until we are given an opportunity to do it in an Enquiry, because I didn't think we should do an enquiry against Mr Pikoli in public. Why should we do an Enquiry in public when in fact an Enquiry is coming."[31]
240. I deny that President Mbeki had indicated that there were other reasons for my suspension which would be disclosed at an enquiry, and I note that Reverend Chikane does not mention where, when and to whom the President Mbeki communicated that.
241. I deny that I have a fondness for media coverage. For almost a year after my suspension on 23 September 2007, I did not give any interviews nor respond to any media enquiries relating to my suspension.
242. I note that Reverend Chikane says that he raised his concerns about my conduct with the head of the National Intelligence Agency. Given our relationship, if he had serious reservations about my conduct, he would have raised them directly with me. He did not do so.
243. This is Reverend Chikane's answer to my evidence relating to the search at the Union Building.
244. The details of the search are set out in paragraphs 58 to 78 of my founding affidavit. There were no security breaches during the search at Union Buildings. But, more importantly, the NPA and government had come to an arrangement to protect the security of all information and classified documents. That arrangement has never been breached. The NPA has stuck to the arrangement. It has remained in place. There has never been a complaint that the arrangement was breached by the NPA.
245. It is significant that in his answering affidavit dealing with the Union Buildings search, Reverend Chikane makes no allegation that the agreed arrangement was breached. This explains why a complaint about my conduct in the Union Buildings search conducted in August 2005, first surfaced in affidavits submitted to the Enquiry in 2007/8. The complaint was obviously raised to bolster the flimsy justification for my suspension.
246. Reverend Chikane dwells on his apprehension before the search about the security of classified documents and access to them by unauthorized persons. What he omits to say is that the arrangement was not breached by the NPA and that he confirmed this at the Enquiry.
247. Worse (as I show below) in dwelling on his pre-search apprehension, Reverend Chikane contradicts previous versions given in his affidavit submitted to the Enquiry and in his evidence at the Enquiry. His answer on this matter is unreliable and should not be taken into account.
248. What is left are the three criticisms of my conduct related to the search by Dr Ginwala. I have dealt with these criticisms comprehensively in my founding affidavit (at paragraphs 58 to 78). I have shown that they are without substance. Importantly, whether they are without substance or not, they do not remotely suggest that I am unfit for office. They remain relatively mild criticisms of details about my conduct during the performance of my duties as NDPP. They cannot serve as the reason for removing me from office on account of alleged unfitness for office.
249. Save for the above, the allegations in paragraph 9 are denied, except where they are admitted in responses to sub-paragraphs below.
Chikane paragraphs 9.1, 9.2 and 9.3
250. I deny that Reverend Chikane advised me that there was no need to execute the warrants at the Union Buildings or that he suggested to me that I should indicate the relevant documents required by the DSO which he would make available. I deny that I adopted a high handed approach or said that "these would be executed on terms and at times designated by me".
251. The version given by Reverend Chikane in his affidavit contradicts the evidence he gave at the Ginwala Enquiry where he said the following[32] : "Then off course he said to me, I mean it's really a matter of courtesy for me to come and inform you, but we have got warrants and we have to execute those warrants."
252. At the time, the only concern communicated to me by Reverend Chikane about the search at Tuynhuys was that it was recess and that there were no official personnel at Tuynhuys. As a result, arrangements had to be made for personnel from the Presidency to be at Tuynhuys when the search was going to take place.
253. I deny that Reverend Chikane expressed any concerns relating to classified documents at the Union Buildings.
254. I deny that I discussed any times with Reverend Chikane. The commencement of the search was not an issue that I was concerned about. That should of necessity have been discussed with Gerrie Nel who was responsible for the practical arrangements relating to the search and in which I played no part.
255. I further deny that my attitude was that I was informing Chikane only as a matter of courtesy or that I said that I was not obliged to do so.
256. I deny that Reverend Chikane contacted me on the day of the execution of the warrants, to enquire whether the people conducting the search had been vetted.
257. Reverend Chikane says that I could not confirm that the people had been vetted and that I had advised him to establish this from Gerrie Nel. This appears to be inconsistent with his version in his replying affidavit submitted to the Enquiry (Annexure 1050). There Reverend Chikane states as follows:
[8.1] I reiterate that I enquired from the National Director whether the persons were scheduled to conduct the searches were vetted. I note that Mr Nel in his affidavit denies that I asked him whether these persons were vetted. It is curious that Mr Nel would make this allegation in view of the fact that the allegation refers to the National Director and not Mr Nel.
[8.2] In any event, it is irrelevant whether or not I asked if the persons intended to conduct the search had been vetted. I submit that whether or not the National Director employs the services of persons who have not been vetted for these purposes is not dependant on whether I raise the issue with him. I expect the National Director, by virtue of his office, to appreciate the necessity for ensuring that these persons are properly vetted."[33]
258. Reverend Chikane's version is not consistent with his evidence given at the Enquiry where he said the following:
"I made a call to Mr Pikoli to say: Are the people who are coming to the Union Buildings and Tuynhuys vetted? And at that point he said: Well I can't say as it is now, because I wouldn't know who is going to which place, it's an operational issue. And I indicated that I am concerned about that because this is a top-secret environment. We can't get any person to arrive here and do search and seizure, gain access to top secret documents without managing them in terms of the relevant laws and regulations.
He then said that he will talk to Mr Nel, Adv Nel, because he will be the one who is responsible for this operation. I was surprised Chairperson, that one of the statements say that I did not raise the matter with Mr Nel. I remember Mr Nel came to my office, it was a very difficult morning, because we have got an extraordinary thing that has never happened, search the office of the President. So we had many things to deal with. We had to get the National Intelligence Agency to come in because they are responsible for classified documents and advise us as to how we deal with those issues.
Now I am surprised that I am said to have not said that to Mr Nel, but it's not my responsibility. I mean the National Director of Public Prosecutions has got an Act. The Act says the investigators must be vetted and the reports that came out at different times within my life in Government, is that that exercise was not carried out." [34]
259. Reverend Chikane, as DG of the Presidency and responsible for the offices at which these searches were conducted, was the person in terms of MISS, who had the necessary responsibility of ensuring that people were properly vetted.
260. Reverend Chikane says that he contacted the Minister and informed her of the conduct of the DSO officials. He could not have complained about my conduct to the Minister. She never raised any complaint with me about my conduct relating to the searches at the Union Buildings.
261. I deny that Reverend Chikane offered to make documents available. In any event, if there had been such an offer, it would not have been practical to execute. At the time it was made, I did not know what relevant documents existed. That was to be determined in the search.
262. There were already talks in some circles that the NPA and President Mbeki were conspiring against Mr Zuma. I therefore felt it was important to follow the necessary legal channels to gather the evidence and I did not want to simply rely on the goodwill of President Mbeki's office.
263. I am, to put it mildly, surprised at the suggestion that it was not urgent to execute the warrants at the Union Buildings and at Tuynhuys.
Chikane paragraphs 9.11 and 9.12
264. I persist with the view that the criticism levelled against me by Dr Ginwala in regard to the searches at the Union Buildings is unfair and unfounded. Again, Reverend Chikane does not specify any security breaches. He refers only to the potential for security breaches. That is all he can do. There were no security breaches. The agreed arrangement to protect all information in Union Buildings was respected and enforced by the NPA.
Chikane paragraph 10 generally
265. This is Reverend Chikane's answer to my case that I was suspended because I refused to permit the Minister to interfere with my constitutionally protected prosecutorial independence. Minister Mabandla instructed me in writing to stop the Selebi prosecution until she was satisfied that there was evidence to support a prosecution.
266. It is apparent from his answer that Reverend Chikane advances no reason or evidence to counter my case. His answer is restricted to responses on detail. He advances no cogent reason countering my case that my suspension resulted from my refusal to buckle under Ministerial pressure to stop the Selebi prosecution. His answer is consequently no answer to my case on this issue.
267. Save for the above, these allegations are denied, except where I make admissions in my reply to sub-paragraphs below.
Chikane paragraphs 10.1 to 10.3
268. I admit that Reverend Chikane was appointed by former President Mbeki to facilitate the exchange of information and documentation between the DSO and SAPS.
269. I was not present at the meeting referred to in paragraph 10.2 and 10.3 and I do not know what was specifically agreed. To the extent that this was agreed, SAPS acted in breach of the agreement between the SAPS and the DSO because it (SAPS) contended that the DSO could only view the documents but was not allowed to make and take copies of any of the documents.
Chikane paragraphs 10.4 and 10.5
270. I deny that Reverend Chikane was not kept advised of the progress in relation to the DSO's request for access to documents.
271. On 27 May 2007, Mr McCarthy met with President Mbeki and Reverend Chikane and provided them with a detailed briefing of the difficulties experienced in securing full co-operation from the SAPS.[35]
272. Neither President Mbeki nor Reverend Chikane offered any solution. Despite a further meeting between the DSO and the SAPS on 4 June 2007, SAPS did not cooperate. Instead on 4 June 2007, Commissioner Williams of the SAPS adopted the position that the SAPS did not have the mandate to make copies of the documents available to the DSO's investigators and challenged the DSO to go to Court to get a warrant.
273. Consequently, I arranged for a meeting with the Minister who was then given a full briefing of how the SAPS had refused to co-operate fully with the DSO which necessitated the application for search warrants.
274. I deny that Mr McCarthy merely said to Reverend Chikane that the DSO was not completely successful in resolving the matter and requested a meeting between President Mbeki and me. In fact, what happened is that Mr McCarthy reported to me that he met with Reverend Chikane and briefed him on the DSO's failure to obtain co-operation from SAPS. This is borne out by the testimony of Reverend Chikane given at the enquiry which appears at page 74 line 29 of the transcript where he says:
"At one stage, the head of the DSO came and said: well we have problems but the National Director for Public Prosecution would want to see the President. I raised questions about the problems." [36]
275. I deny that Reverend Chikane was not informed that the SAPS were denying DSO access to the documents.
276. I admit that Reverend Chikane was appointed to mediate the differences between SAPS and the DSO. I cannot understand why, after being advised of the problems the DSO was experiencing on 20 and 27 May 2007 and again in July 2007, Reverend Chikane did not arrange another meeting between the DSO and SAPS to mediate their differences.
277. The fact that Mr McCarthy had requested a meeting with President Mbeki was never a bar to Reverend Chikane facilitating a resolution of the dispute between SAPS and the DSO. If Reverend Chikane was genuinely concerned about resolving the differences, he would have done so. The reality is that Reverend Chikane would not have been in a position to resolve the differences. He conceded as much during his evidence at the Ginwala Enquiry where he said :
"I was not going to persuade the police to do what they believed may not be legally right, I was going to help to find a solution to deal with the documents of that nature".[37]
278. The SAPS were not prepared to make copies of the documents sought available to the DSO. The SAPS failed to testify at the Enquiry. Consequently, my evidence on this aspect stands.
279. I admit that President Mbeki and Reverend Chikane appeared surprised that the warrants had been obtained. They should not have been surprised. They were aware from the numerous meetings held and the memoranda sent of the attempts to get the documents out of the SAPS. Reverend Chikane knew on 20 May 2007 that the SAPS refused to make available documents sought by the DSO. I still find it incomprehensible that senior police officials simply refused to allow the NPA to make copies of documents required for a criminal investigation.
280. At the meeting I had with President Mbeki, neither he nor Reverend Chikane criticised me for ignoring Reverend Chikane's role. I deny that it was unnecessary to proceed and apply for the warrants and I deny that I ignored Reverend Chikane's role.
Chikane paragraphs 10.9 and 10.10
281. I deny that I was arrogant or refused to co-operate with President Mbeki. Reverend Chikane did not mention the "two week-one week" discussion in any of his affidavits submitted to the Enquiry. He did not testify about this when he gave evidence.
282. I deny that I showed a clear lack of appreciation for national security issues. My appreciation and sensitivity for matters of national interest or security and my keen awareness of the need to create an enabling environment for the smooth execution of the Selebi warrants, is evident from the following. I met with President Mbeki and the Minister on numerous occasions to report to them about the Selebi investigation and prosecution. I instructed the investigation team to delay the execution of the warrants until I had met with President Mbeki and the Minister.
Chikane paragraphs 10.12 and 10.13
283. I admit that Mr Selebi has since been charged. He was charged only after an internal panel had agreed with me and the NPA that Mr Selebi had a case to meet, there was much speculation in the media that I had been suspended by the President to protect Mr Selebi, and the ANC's Polokwane Conference in 2007.
284. I submit that if, after all these events, President Mbeki continued to protect Mr Selebi, it would have been very obvious that I was suspended to put a spoke in the wheel of the arrest and prosecution of Mr Selebi. It is consequently not surprising that government no longer stood in the way of charging Mr Selebi.
MINISTER MABANDLA'S AFFIDAVIT (see here)
285. I deny that the decision to relieve me of my responsibility as NDPP was based on the Ginwala report and on the written representations submitted by me to President Motlanthe.
286. Except for the above, these allegations are admitted.
287. Except for reiterating that Dr Ginwala concluded in her report that there was no evidence that the relationship between me and the Minister had broken down, these allegations are admitted.
288. The facts are set out in paragraphs 17 to 22 and 171 to 179 of the founding affidavit. It is apparent that they do "travel beyond the terms" of the Minister's letter of 18 September 2007. This evidence was set out in my affidavit submitted at the Enquiry.[38] The Minister failed to respond to this evidence in her response submitted to the Enquiry. Annexures 1093 to 1155 are copies of the Minister's affidavits (without the annexures) submitted to the Enquiry. This evidence was also led at the Enquiry. The Minister failed to appear at the Enquiry.
289. Even now, when she does take the opportunity of responding to this evidence, the Minister does not say why she sent me her letters of 18 and 19 September 2007. She says that her letter of 18 September 2007 speaks for itself. It does. So does her letter of 19 September 2007. Their purpose and meaning is confirmed by the context in which they were sent (set out at paragraphs 171 to 179 of the founding affidavit). They contained an instruction from the Minister. She instructed me to stop the Selebi prosecution until she was satisfied that there was sufficient information and evidence for it. When I refused to heed this instruction, I was suspended.
290. Except for the above, these allegations are denied.
291. It is astonishing, that even at this late stage, after having been given at least three opportunities to provide detail or evidence of the alleged breakdown in the relationship between me and the Minister, she is manifestly unable to provide any detail.
292. One of the reasons given for my suspension is the alleged breakdown of the relationship between me and the Minister "due to several incidents, such as your testimony to the Khampepe Commission of Enquiry".[39] At the Enquiry, government made no effort to substantiate the Khampepe complaint and ultimately did not rely on it. Additional allegations made in support of the alleged breakdown in the relationship between me and the Minister were raised for the first time in the context of the Selebi investigation.[40] They are the following:
- "The attitude of the National Director was that he does not have to give the Minister full information on this matter"[41] and
- "The National Director not only fails, on request, to provide full details to the Minister about the basis on which such warrants were obtained, but went on to the point of suggesting that in requesting information regarding the warrants against the Commissioner of Police, the Minister could be obstructing the administration of justice".[42]
293. Dr Ginwala found that there was no substance in the complaint that the relationship between me and the Minister had broken down.[43] That it could not have broken down for the reasons given is apparent from paragraphs 149 to 180 of the founding affidavit which is the evidence of a full chronology of my reports to the Minister about the Selebi investigation and of my responses to requests for information.
294. Except for the above, these allegations are denied.
MS MAHLANGU-NKABINDE'S AFFIDAVIT
295. I do not know why the second and third respondents have filed their "Explanatory Affidavit". Ms Mahlangu-Nkabinde says on page 757 in paragraph 4 that its purpose is "to provide some background into process followed in parliament in respect of the impugned decision". But the process followed in parliament is irrelevant. I have not sought any relief against the second and third respondents. I can only surmise that they wish to bolster the respondents' case by introducing their report in evidence in this application. I submit that it is inadmissible and ask for it to be struck out.
296. It was quite evident to me that the parliamentary process was a charade:
296.1. I was the first witness. I gave evidence on 20 January 2009.
296.2. On the very same day, the National Working Committee of the ANC issued a public statement, annexure 572. As appears from it, they said the following of the parliamentary process regarding my removal from office:
"The NWC confirmed the ANC's support for the decision of the President of the Republic, Kgalema Motlanthe, regarding the position of the National Director of Public Prosecutions. The meeting reaffirmed the need to move quickly to finalise this matter in parliament and ensure that the post is filled."
296.3. The majority party accordingly decided to support the President's decision to remove me from office and was concerned only to ensure that the parliamentary process was finalised quickly to "ensure that the post is filled", even before the hearing started. They had clearly made up their minds about the outcome.
296.4. On the day I gave evidence, the commencement of the hearing was delayed because the ANC members of the Joint Parliamentary Committee were attending a meeting of the caucus of their party. They arrived at the hearing having come from their party caucus.
296.5. It quickly became apparent in the hearing that they had no interest at all in any real enquiry into my fitness for office. All the questions put to me by the ANC members of the committee were hostile and designed to impugn my competence and integrity. None of them were questions put in good faith to elicit information for purposes of a dispassionate evaluation of my fitness for office.
296.6. The process was a charade. I have however chosen to make nothing of it because I wish to establish that the President's decision to remove me from office was wrong because I am and have always been fit for office.
297. I do not understand Ms Mahlangu-Nkabinde to offer any evidence relevant to my fitness for office. In case I misread her however, I deny any suggestion that I am not fit for office.
_______________________
VUSUMZI PATRICK PIKOLI
I hereby certify that the deponent knows and understands the contents of this affidavit and that it is to the best of his knowledge both true and correct. This affidavit was signed and sworn to before me at SANDTON on this the ____day of ______________ 2009, and that the Regulations contained in Government Notice R.1258 of 21 July 1972, as amended, have been complied with.
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[1] Terms of Reference 3 October 2007 annex 302 at 304 para 2
[2] Annexure 1069 lines 13 to 15
[3] Annexure 1071 line 26 to Annexure 1072 line 30
[4] Annexure 1073 lines 1 to 6
[5] Letter of dismissal 8 December 2008 563 at 566 paras 11 and 12
[6] Moosajee 577 at 578 para 4 and 579 para 10
[7] President Motlanthe repeats this interpretation in his answer p 656 para 16 and p 665 paras 37.3 to 37.6
[8] Mbeki Answer p 720 para 24.2, p 721 paras 29.1 and 29.2 and p 726 para 35.2
[9] Chikane Answer p 749 paras 10.4 to 10.8
[10] Mbeki Answer p 712 para 17.1
[11] Mbeki Answer p 720 para 24.3
[12] Mbeki Answer p 724 para 32.2
[13] Memorandum 19 March 2007 annexure 246
[14] Memorandum 19 March 2007 annexure 246 at 251
[15] Memorandum 7 May 2007 annexure 252
[16] Memorandum 7 May 2007 annexure 252 at 253
[17] I described these events in greater detail in my founding affidavit p 72 para 156
[18] Chikane's Ginwala evidence p 74 line 30 to p 75 line 4
[19] Letter 19 September 2007 annexure 277 at 278 para 4
[20] Letter 19 September 2007 annexure 277 at 278 para 4
[21] Pikoli Ginwala evidence p 881 lines 1 to 5
[22] Pikoli Ginwala evidence p 1082 line 18 to p 1083 line 5
[23] Letter 19 September 2007 annex 277 at 278 para 4
[24] Mbeki Answer p 714 para 18.2, p 723 para 30.2, p 724 para 33.2, p 725 para 33.4, p 727 para 36.2 and p 730 para 38.1. Chikane Answer p 751 para 10.10
[25] Mbeki Answer p 715 para 18.2
[26] Mbeki Answer p 724 para 33.2
[27] Mbeki Answer p 725 para 33.4
[28] Letter 19 September 2007 annexure 277 at 278 para 4
[29] Transcript pp 75 line 8 - p 80 line 3; p 153 line 25 - p 155 line 10
[30] See, Transcript at p81; and p83 line 32 - p84 line 4; p181 line 21; p230 line 1
[31] Transcript p 130 lines 25 to 29
[32] Transcript page 68, line 11
[33] Annexure 1050 at 1056 paragraph 8.1
[34] Transcript page 69 line 6
[35] Reverend Chikane confirmed the meeting in his evidence at the Enquiry at Transcript p 138 line 24 - p 139 line 3.
[36] Transcript page 74 line 29
[37] Transcript p148, line 30
[38] At paragraphs 112 and 113
[39] President's letter 23 September 2007 VP1
[40] Government's founding submissions p 1028 paras 130 to 138
[41] Government's founding submissions p 1029 para 132
[42] Government's founding submissions p 1029 para 136
[43] Ginwala Report Annexure 306
