Introduction
The President suspended Mr Pikoli on Sunday 23 September 2007. Mr Pikoli says that the circumstances of his suspension, its history and its aftermath, made it absolutely clear that there was only one reason for his suspension and one reason alone. It was to put a spoke in the wheels of the investigation and prosecution of the National Commissioner of Police Mr Jackie Selebi.

This statement of fact made by Mr Pikoli, must be accepted for purposes of this enquiry. If the Government contends that his evidence on this score should not be accepted, then their witnesses who say that he was suspended for some other reason, must be called to give oral evidence so that it may be tested by cross-examination.

We submit that the circumstances of Mr Pikoli's suspension, its history and its aftermath indeed leave little doubt that he is correct when he describes the true reason for his suspension. They make it clear that the case the Government now seeks to make against Mr Pikoli, is an attempt made after the event, to justify his suspension on grounds quite unrelated to the true reason for it...

The circumstances of the suspension
In January 2006 Ms De Beer, the Director of Public Prosecutions in Johannesburg, reported to Mr Pikoli that there was reason to be suspicious of Mr Selebi's role in the investigation of the Kebble murder. She asked the DSO to assist. Her request triggered the DSO's investigation of the Kebble murder which in turn led to their investigation of Mr Selebi.

Mr Pikoli went to extraordinary lengths to make sure that both the Minister and the President were at all times kept fully informed of the Selebi investigation. His evidence on this score is undisputed. From March 2006 to September 2007 -

He met with the Minister and briefed her on the Selebi investigation on 13 occasions in March 2006, in August 2006, on 9 November 2006, on 16 November 2006, on 11 March 2007, on 13 March 2007, on 17 March 2007, on 28 March 2007, on 8 May 2007, on 25 June 2007, on 11 September 2007, on 18 September 2007 and on 23 September 2007.

He furnished the Minister with written reports on the Selebi investigation on 19 March 2007, and 19 September 2007. The Minister also received a copy of his written report of 7 May 2007 to the President.

He met with the President and briefed him on the Selebi investigation on ten occasions in March 2006, in August 2006, on 9 or 10 November 2006, on 14 November 2006, on 20 November 2006, on 11 March 2007, on 9 May 2007, on 20 May 2007, on 15 September 2007 and on 16 September 2007.

He submitted written reports to the President on the Selebi investigation on 7 May 2007 and 16 September 2007.

On 25 June 2007 Mr Pikoli arranged for the Selebi investigating team to meet the Minister and give her a full and comprehensive briefing on the investigation. The Minister has never challenged Mr Pikoli's summary of this briefing and its outcome in his letter to her of 19 September 2007:

"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 course of action. As a matter of fact, I requested that you seek an audience with the President to apprise him of the intended course 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 course of action."

On 31 August 2007 Mr Pikoli finally decided to proceed with the search, arrest and prosecution of Mr Selebi. When he gave the investigating team the go-ahead, he instructed them to report to him as soon as they had obtained the search and arrest warrants so that he could brief the President before they were executed.

The investigating team obtained a warrant for Mr Selebi's arrest on 10 September 2007. Mr Pikoli told the Minister of it on 11 September 2007 and asked her to inform the President and to arrange for him to meet the President to brief him on it. She agreed to do so.

The investigating team obtained the search warrant on 14 September 2007.

On Saturday 15 September 2007 Mr Pikoli met the President and Reverend Chikane and reported to them that the arrest and search warrants had been obtained. The President was surprised by this news and said that he had been unaware that SAPS had refused to co-operate. Mr Pikoli had however made it clear in his report to the President on 7 May 2007 that the DSO intended to apply for a search warrant. Mr Pikoli had also reported the subsequent developments to the Minister on 25 June and 11 September 2007. She has not explained why she did not in turn keep the President informed. The Reverend Chikane requested Mr Pikoli to prepare a written report for the President.

Mr Pikoli prepared a report overnight and again met with the President and Reverend Chikane the following day, Sunday 16 September 2007. He gave the President a copy of his report. The President said he wanted to call a meeting of the National Security Council so that Mr Pikoli could clarify matters for them. Mr Pikoli agreed to do so on the understanding that he was not seeking their permission to proceed with the execution of the warrants. The President asked Reverend Chikane to set up the NSC meeting and one apparently did take place but Mr Pikoli was not invited to attend.

The President apparently thereafter sent a letter to the Minister. The Minister told Mr Pikoli of the letter on 18 September 2007. The Government promised to give us a copy of the letter but have not yet done so.

On Tuesday 18 September 2007 Mr Pikoli met with the Minister. The Minister told him of the letter she had received from the President. She had in turn prepared a letter to Mr Pikoli which she handed to him at their meeting.

Mr Pikoli only opened and read the Minister's letter on his return to his office. He says that he was astonished by it because it was so completely out of keeping with the long history of interaction between him and the Minister on the Selebi investigation and was also completely out of character with their friendly interaction at their meeting.

We submit that the letter was an unconstitutional and unlawful attempt to interfere with Mr Pikoli's prosecutorial independence:

The Minister said in the opening sentence that she was "advised that you have taken legal steps to effect the arrest of and the preference of charges against the National Commissioner of the Police Service" as if this was the first she had heard of it. It was an incongruous statement in the light of the fact that she had been briefed on the investigation over a period of 18 months and had been told at the comprehensive briefing in June 2007 that the DSO had finally decided to proceed with the search, arrest and prosecution of Mr Selebi.

The Minister had over 18 months never asked for more information on the Selebi investigation than that provided to her. Inexplicably and on the eve of Mr Selebi's arrest, the Minister suddenly required "all of the information on which you relied to take the legal steps to effect the arrest of and the preference of charges against the National Commissioner of the Police Service". She literally demanded to be given all the evidence gathered in the case over a period of 18 months.

She asserted that "I must be satisfied that indeed the public interest will be served should you go ahead with your intended course of action". But that was a misconception. In terms of the Constitution and the NPA Act, it is for the NDPP to be satisfied of those matters and not the Minister. She arrogated to herself a function which the Constitution and the NPA Act vest in the NDPP.

The Minister concluded by instructing Mr Pikoli not to proceed with the search, arrest and prosecution of Mr Selebi until she had satisfied herself that there was sufficient evidence to do so:

"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, you shall not pursue the route that you have taken steps to pursue."

This instruction was a clear violation of the principle of prosecutorial independence entrenched in s 179(4) of the Constitution and in s 32(1)(a) of the NPA Act.

It was also a clear contravention of the criminal prohibition of improper interference with the prosecuting authority in terms of s 32(1)(b) read with s 41(1) of the NPA Act.

Mr Pikoli replied to the Minister's letter the following day, Wednesday 19 September 2007. The reply deliberately created an opportunity for the Minister to explain that she had not intended to issue an instruction. Mr Pikoli made it clear however that, if the Minister's letter was meant as an instruction, then it was unlawful and he could not comply with it:

"I wish to point out respectfully that if indeed it were an instruction, it would be unlawful. It would place me in a position where I would have to act in breach of the oath of office I took and of my duties under the Constitution and the NPA Act."

Mr Pikoli says that he realises today that it was the Minister's unlawful order on Wednesday 18 September 2007 and his refusal to comply with it on Thursday 19 September 2007, that were the turn of events which culminated in his suspension on Sunday 23 September 2007. The Minister does not dispute this part of Mr Pikoli's evidence.

The Minister addressed a further letter to Mr Pikoli on Wednesday 19 September 2007. She admitted that Mr Pikoli had reported to her on the Selebi investigation from time to time but again insisted that she wanted all the evidence on which Mr Pikoli had based the decision to search, arrest and prosecute Mr Selebi. She demanded all of this "today before close of business".

Mr Pikoli worked late that night preparing the report the Minister demanded. In the course of the evening, there was a telephone conversation between them in which the Minister had a severe emotional outburst.

Mr Pikoli finalised his report overnight. He sent it to the Minister under cover a further letter dated 19 September 2007. The report and the covering letter were delivered to the Minister first thing on the morning of Thursday 20 September 2007. Mr Pikoli concluded the letter by urging the Minister "that we meet as soon as possible to address any queries that you may have".

On Thursday 20 September 2007 Mr Pikoli called Reverend Chikane to arrange a meeting with the President. Reverend Chikane told him the following day that the President would meet him on Sunday 23 September 2007 at 19h45.

On Friday 21 September 2007 the Minister addressed a further letter to Mr Pikoli. The Minister said that Mr Pikoli's report of 19 September 2007 contained "nothing substantially different to the information that you provided in your earlier briefings". She added that she would meet with Mr Pikoli on Sunday 23 September 2007 at 17h00, that is, shortly before his meeting with the President.

Mr Pikoli met with the Minister on Sunday 23 September 2007 at 17h20. The Minister asked Mr Pikoli to resign because she said there had been a breakdown of trust between them. Mr Pikoli was shocked by this statement because they had always had a cordial relationship. He declined to resign.

Mr Pikoli met with the President shortly thereafter at about 19h45 on Sunday 23 September 2007. The President told Mr Pikoli that he would suspend him if he did not resign. Mr Pikoli confirmed that he was not prepared to resign. The President caused a letter to be prepared which he then gave to Mr Pikoli informing him of his suspension.

We submit that the narrative of this course of events speaks for itself. There was one reason and one reason only for Mr Pikoli's suspension. The Minister or the President or both were, for reasons they have never disclosed, extremely upset by Mr Pikoli's decision to proceed with the search, arrest and prosecution of Mr Selebi. They retaliated by suspending him. Their underlying motives for doing so have never been disclosed. Their conduct in doing so was however unconstitutional and unlawful.

Government's shifting excuses
Government has had to explain Mr Pikoli's suspension. They have never given a satisfactory explanation for it. The explanations they have given, have shifted over time. Their unsatisfactory and shifting explanations reinforce the inference that the true explanation for their conduct was that they wanted to stop Mr Pikoli from proceeding with the search, arrest and prosecution of Mr Selebi.

The Minister had until Wednesday 18 September 2007 never complained about Mr Pikoli's performance of his functions and had never raised any complaint or even a query about the conduct of the Selebi investigation. Suddenly and apparently only after she had received the President's letter, her attitude changed from Wednesday 18 September 2007. She ordered Mr Pikoli to stop the search, arrest and prosecution of Mr Selebi and, when he refused to do so, he was suspended.

On the day of his suspension, the Minister suggested that he resign because there had been a breakdown of trust between them. But that was not true. It was simply an excuse plucked out of the air without any factual underpinning at all. The Minister has to this day not sought to make or defend any suggestion that she can no longer trust Mr Pikoli.

In his suspension letter of 23 September 2007 the President suggested that there were two reasons for Mr Pikoli's suspension:

The first was that Mr Pikoli had "entertained the granting of immunity to members of organised crime syndicates in instances where the prosecution of such people would, in the Government's view, be in the public interest". But this explanation simply does not hold water for various reasons. The first is that this complaint had never been raised with Mr Pikoli before. The suggestion that it suddenly bothered Government on Sunday 23 September 2007, was with respect far-fetched. The second is that the complaint is not true. We will later deal with it when we address Government's plea bargain complaint in these proceedings. The third is however in any event that the complaint can never justify Mr Pikoli's suspension. It is entirely and exclusively within Mr Pikoli's discretion to determine when to enter into immunity arrangements and when not to do so. It is part and parcel of his prosecutorial discretion. Government may not interfere with it even when they think they know better. They simply do not have the right to second-guess him on this score.

The President said in the second place that the Minister of Justice had informed him that there had been a breakdown of relations between her and Mr Pikoli. It was said to be due to "several incidents such as your testimony to the Khampepe Commission of Inquiry". But this was also a new complaint. The suggestion that it suddenly concerned the Minister so long after the Khampepe Commission hearings on Sunday 23 September 2007, is again far-fetched. There was no breakdown in the relationship between the Minister and Mr Pikoli. If there was, it was of the Minister's doing and not that of Mr Pikoli. But even if he is wrong on every score, the breakdown in their relationship is in any event not a ground for his suspension.

On Monday 24 September 2007 the Government issued a public statement on the suspension of Mr Pikoli. They said that the decision to suspend him was taken on the basis of "an irretrievable breakdown in the working relationship between the Minister ... and the NDPP". But it was again not true, in any event not of Mr Pikoli's doing and moreover not a ground for his suspension. Government made no mention of the plea-bargain complaint on this occasion. The most curious feature of the statement however is that it pretended that the suspension had nothing to do with the Selebi investigation. The pretence was manifestly untrue.

On Tuesday 25 September 2007 the Reverend Chikane briefed the opposition parties in Parliament on the suspension of Mr Pikoli. He told them that the breakdown between the Minister and Mr Pikoli was not personal but rather that "something had gone wrong" in the exercise of reporting to the Minister in terms of the Constitution. This was the first time that this explanation was offered. It is a complaint that the Minister has repeated in these proceedings. But it is wholly unjustified as we shall demonstrate. It is in any event no justification for Mr Pikoli's suspension. It is again particularly curious for its failure to make any mention of the Selebi investigation.

In their main submission, Government raised a range of new complaints never raised before. Now for the first time the Selebi investigation is mentioned but only to complain, that "The attitude of the National Director was that he does not have to give the Minister full information on this matter" and that "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".

These complaints are dishonest. They are manifestly untrue. They are also dishonest because they fail to disclose,

• that Mr Pikoli exhaustively and on numerous occasions briefed the Minister and the President on the progress of the Selebi investigation;
• that neither the Minister nor the President at any time raised any objection or requested any further information on the Selebi investigation;
• that the Minister's first request for further information was made on the eve of Mr Pikoli's suspension, was a request for all the evidence gathered in the Selebi investigation and was coupled with an instruction to Mr Pikoli to stop his plans to search, arrest and prosecute Mr Selebi;
• that Mr Pikoli exerted himself to report to the Minister yet again on the Selebi investigation and made it clear that he would provide her with whatever further information she required, and
• that Mr Pikoli never in fact refused to provide the Minister with any information she had requested.

Government asserts in this enquiry that it "does not interfere with the National Director's decisions to investigate and prosecute any person". The assertion is manifestly not true. The Minister's instruction to Mr Pikoli in her letter of 18 September 2007 was blatant interference with his decision to search, arrest and prosecute Mr Selebi. Government's assertion is not only untrue but it is disingenuous of them to make it without even disclosing the Minister's letter of 18 September 2007.

This is an edited extract of the submission by the legal team of the NDPP Vusi Pikoli to the Ginwala enquiry, May 2008