THE NORTH GAUTENG HIGH COURT, PRETORIA
CASE NO: 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
FIRST RESPONDENT'S AFFIDAVIT RE INTERIM RELIEF SOUGHT BY THE APPLICANT
I, the undersigned,
KGALEMA PETRUS MOTLANTHE
do hereby make oath and state that:
1. I am the President of the Republic of South Africa and the First Respondent in this matter.
2. The facts to which I depose are within my personal knowledge and are both true and correct unless otherwise stated or the converse appears from the context.
3. To the extent that legal submissions are advanced in this affidavit, I have done so on the advice of my legal representatives.
4. I have read the affidavit of Vusumzi Patrick Pikoli (the Applicant) and wish to respond thereto as set out below. In doing so I shall ignore allegations which are argumentative and/or irrelevant.
5. The purpose of this affidavit is to deal, solely, with the urgent interim relief sought by the Applicant in relation to the appointment of a new National Director of Public Prosecutions (NDPP).
6. A detailed opposing affidavit to the main relief sought in the Applicant's application is being prepared. That affidavit will deal with the further allegations made by the Applicant and will also deal with the further main relief sought by the Applicant in this application.
7. I wish to point out that I will be opposing the main relief sought in the application. I also wish to point out that I dispute the Applicant's contentions that I have, at any time, acted unlawfully or unconstitutionally. I further dispute the Applicant's allegations that I have acted in an improper manner or due to ulterior motives. I will canvass these issues fully in my main opposing affidavit to be filed in due course.
8. The Applicant, nevertheless, seeks an undertaking or order that, pending the final determination of his main application I should not appoint another NDPP.
9. As is apparent from the Applicant's main affidavit he was suspended by my predecessor in September 2007.
10. Since that date there has been an acting NDPP.
11. As the Applicant points out in paragraph 40.3 of his main founding affidavit it is highly undesirable that the office of NDPP be held by someone who holds that office on a temporary basis. I agree with the Applicant that this unfortunate state of affairs should be ended as soon as is reasonably possible.
12. I also agree with the Applicant that an acting NDPP does not have the same security of tenure and thus does not enjoy the same protection of his independence as a permanent incumbent.
13. Where I join issue with the Applicant is his contention that the only "viable solution" is to keep an acting NDPP in place until the Applicant's application is finally determined, a process, which even if expedited, will take many months to be completed.
14. The Applicant further contends that the appointment of a new NDPP will "be fraught with legal complexity and uncertainty". The Applicant does not elaborate upon this generalised statement, which is in any event denied.
15. The appointment of a new NDPP will not create any legal uncertainty. On the contrary it will regularise an unfortunate situation which, on the Applicant's own version, is undesirable.
16. It is true that the appointment of a new NDPP will probably result in such person having to be joined as a party in the main proceedings. It is also true that if the Applicant's main application is ultimately successful (and that is very much in dispute) then a person who has been appointed as NDPP may have to vacate the office. That is an issue which will accordingly be dealt with in due course, but is an issue which does not give rise to any uncertainty or undue legal complexity.
17. I wish to set out the reasons why I have formed the view, after careful consideration, that it is in the public interest that a new National Director of Public Prosecutions be appointed. These reasons include:
17.1. The undesirability of the continuation in office of an acting NDPP. As already indicated the Applicant himself freely acknowledges such undesirability.
17.2. I am satisfied that the Applicant has been lawfully and appropriately removed from the office of NDPP, in terms of Section 12 of the National Prosecuting Authority Act, Act 32 of 1998 (as amended) (the Act).
17.3. The Applicant having been removed from office it is incumbent upon me to appoint a new NDPP having regard to the provisions of Section 10 of the Act read with Section 179 of the Constitution. These provisions place a very specific duty upon myself, as President of the Republic of South Africa.
17.4. I am also the executive authority of the Republic and I am obliged to give effect to my powers and functions as set out in Chapter 5 of the Constitution and more particularly Sections 83, 84 and 85 of the Constitution.
17.5. Since the Executive Authority of the Republic is vested in myself I am obliged to ensure the effective functioning of state departments and in particular the National Prosecuting Authority.
17.6. I am acutely aware of the particular role which the NDPP is required to perform within our constitutional dispensation. It is unfortunate that the procedure which ultimately led to the removal from office of the Applicant took as long as it did. That process has now, in my view, been validly brought to a conclusion which has resulted in the lawful and appropriate removal from office of the Applicant.
17.7. I am further of the view that to provide the undertakings which the Applicant has demanded with regard to the appointment of a new NDPP, pending the final determination of the Applicant's application will be to concede constraints upon the powers and functions which vest in the office of the President and which must be given effect to.
17.8. Until such time as a Court has finally ruled upon the issues which arise in the Applicant's main application, and assuming that these are finally determined in the Applicant's favour (which is disputed) I do not, with respect, accept that there are any appropriate or lawful restraints upon the powers, duties and functions imposed upon me in relation to the appointment of a new National Director of Public Prosecutions.
17.9. As will become apparent from the main founding affidavit to be filed by me in the main application, I dispute the fundamental bases upon which the applicant seeks relief in the main application. In particular I dispute that the Applicant was a fit and proper person to occupy the position of NDPP. These aspects I will deal with more fully in my main affidavit.
17.10. I respectfully submit that the grant of the interim order sought by the Applicant will effectively pre-judge the very issue which is to be decided in the main application. The interim order sought by the Applicant presupposes that he will be ultimately reinstated. As will become apparent from the main affidavit to be filed by me such relief is not only contested, but indeed contested upon a sound factual and legal basis.
17.11. I accordingly dispute that any balance of convenience favours the Applicant in relation to the interim relief sought by him. On the contrary the balance of convenience favours the appointment of a new NDPP who will then be in a position to perform the statutory and constitutional functions which vest in that office in a manner fully consistent with the principles laid down I the Act and in the Constitution.
18. I accordingly respectfully submit that the Applicant's application for interim relief should be dismissed with costs.
KGALEMA PETRUS MOTLANTHE
PRETORIA, March 13 2009
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