Address to the Nation by President Kgalema Motlanthe on the removal of Advocate VP Pikoli from office as National Director of Public Prosecutions

8 December 2008

Fellow South Africans,

As is commonly known my immediate predecessor, former President Thabo Mbeki, suspended the National Director of Public Prosecutions, Advocate Vusi Pikoli in September 2007, in accordance with the provisions of the National Prosecuting Authority (NPA) Act.

Subsequent to the suspension, Dr Frene Ginwala was appointed in terms of the provisions of the NPA Act, to make enquiry into certain specified issues, in particular:

"[t]he fitness of Advocate V Pikoli to hold the office of National Director of Public Prosecutions."

The Report of the Enquiry was presented to me by the Chairperson, Dr F Ginwala on the 4th November, 2008. The Enquiry made certain findings and accompanying recommendations. Among other things it found that:

• the basis advanced by Government for the suspension of Adv Pikoli had not been established through the evidence submitted to the Enquiry;
• in the course of the Enquiry some deficiencies in the capacity and understanding of Adv Pikoli to fully execute the range of responsibilities attached to the office of the NDPP became apparent - more specifically, the lack of understanding on his part of his responsibility to operate within a strict security environment and to ensure that the NPA, and the DSO, operate in a manner that takes into account the community interest and does not compromise national security; and
• Advocate Pikoli did not fully appreciate the sensitivities of the political environment in which the NPA operates, and his responsibility to manage this environment.

More importantly, the Enquiry opined that, had the evidence tendered by the State - pertaining to the sensitive environment in which the NPA operates - been given as the reason for the suspension, she would not have waivered in finding that the reason for the suspension was valid.

The Enquiry consequently recommended, among other things, that Advocate Pikoli "be restored to the office of the NDPP".

In considering the report, inclusive of its findings and recommendations, I have taken cognisance of the fact that the Enquiry appears to have confined itself to the determination of whether the communicated reason for the suspension of Advocate Pikoli was legitimate rather than whether he was fit to hold the office of National Director of Public Prosecutions as was stipulated in the terms of reference.

It was therefore apparent to me that in order to come to a decision on the recommendations, I could not do so without having regard to the remarks contained in the Report, in particular the adverse findings made against Advocate Pikoli. The gravity of these findings has to be viewed against the qualities which the Enquiry deems necessary for one holding the office of NDPP. The Report asserts that:

"...the person must possess an understanding of the responsibilities of such an office. There must be an appreciation of the significance of the role a prosecuting authority plays in a constitutional democracy, the moral authority that the prosecuting authority must enjoy and the public confidence that must repose in the decisions of such an authority. To that must be added an appreciation for and sensitivity to matters of national security."

In view of these remarks, I invited Advocate Pikoli to make such written representations as he may deem fit, especially with respect to the adverse findings made against him.

In his representations (see here), Advocate Pikoli embraced those findings that were in his favour and challenged those that were against him. More significantly, I formed the view that Advocate Pikoli's representations exhibited a failure on his part to acknowledge the serious deficiencies identified by the Enquiry.

Mindful of all these factors, it became clear to me that I could not come to a decision without taking into account the entirety of the findings of the Enquiry, including in particular the observation that the suspension would have been found valid if the totality of the evidence given by the State had been the basis for the suspension.

In the end, I was required as President of the Republic to make a final decision in terms of section 12(6) (a) of the NPA Act on whether or not Advocate Pikoli was fit and proper to continue to hold the office of the National Director of Public Prosecutions. Adv Pikoli's professional competence is not in question. However, it should be noted that the requisite skills would, necessarily, include professional competence as well as those outlined by the enquiry, in particular, appreciation for and sensitivity to matters of national security.

Furthermore I have had regard to the provisions of the constitution.

In this regard, acting in terms of sections 12(6)(a)(iv) of the National Prosecuting Authority Act, I have come to the determination that Advocate Pikoli should be relieved of his responsibility as the country's National Director of Public Prosecutions.

As stipulated in the National Prosecuting Authority Act, I will communicate my decision and all relevant background information to Parliament within thirty (30) days.

Our government is mindful of the critical role that the National Prosecuting Authority plays in the firmament of institutions that are responsible for the prevention and combating of crime, and therefore for ensuring improving conditions of safety and security for all who reside in our country.

I therefore wish to assure you of the unbridled commitment of the government to ensure that the NPA is able to institute criminal proceedings on behalf of the state, to carry out any necessary functions incidental to this core mandate as well as to exercise its overall functions without fear, favour or prejudice.

I have also noted the observations of the enquiry with regard to the issue of the character and conduct of the DG of the Department of Justice and Constitutional Development, and have requested the Minister of Justice and Constitutional Development to follow the matter up in line with the Public Service Act and relevant regulations.

I am confident that the lessons that we have all learnt from this experience will stand us in good stead as we intensify the war against crime and corruption.

I Thank You!

Statement issued by The Presidency December 8 2008

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