SPEECH BY TERTIUS DELPORT, MP, DA SPOKESPERSON FOR JUSTICE, CONSIDERATION OF REPORT OF AD HOC JOINT COMMITTEE TO CONSIDER MATTERS IN TERMS OF SEC 12 OF THE NATIONAL PROSECUTING AUTHORITY ACT, NATIONAL ASSEMBLY, CAPE TOWN, FEBRUARY 12 2009

Madam Speaker,

One month ago Parliament established an ad hoc committee that would deliberate President Motlanthe's decision to dismiss National Director of Public Prosecutions Vusi Pikoli. This committee was tasked with analysing the president's decision, and then providing Parliament with recommendations.

Four weeks later, that committee has now provided its recommendations. But, Madam Speaker, I can report that little in the way of analysis has taken place.  Indeed, if Parliament now proceeds on the basis of these recommendations, we will be witnessing what I can only describe as a travesty of justice. In a country in which government has become riddled with corruption, in which there is often little respect for the principles of justice and the rule of law, here is a rare example of a man who has stood up for what is right. A man who has shown courage even when his decisions risked the wrath of the majority party, because he understands, like so few others have, that his ultimate loyalty lies with the constitutional order and the people of South Africa.

On the merits, Advocate Pikoli has been a capable National Director, Madam Speaker. It is notable that the Ginwala Report said as much: "He impressed me," says Dr Ginwala, "as a person of unimpeachable integrity." As someone with "passion to executive his constitutional responsibilities without fear, favour or prejudice."

This finding, Madam Speaker, was not made in spite of Advocate Pikoli's decisions and actions as National Director. It was made because of them. Time and again in these hearings we have heard desperate allegations directed towards Advocate Pikoli, and time and again these have turned out to entirely unsubstantiated. Advocate Pikoli did not, for instance, at any stage place national security in grave danger:

• Of security risks during the search and seizure operation at the Union Buldings, Dr Ginwala writes, and I quote, I am not satisfied that government has established that there were in fact any security breaches.
• And of the complaint that Advocate Pikoli would spark a security crisis by failing to delay the arrest of Commissioner Selebi by a further period of seven days, it must be noted that this was never given as the reason for his suspension, was never communicated to the Minister, and was not communicated to Advocate Pikoli by the Minister.

And even if this had been communicated as a reason for the suspension, it is clearly not the case that Commissioner Selebi's arrest created a crisis. Indeed, Madam Speaker, this is the same erroneous line that we now hear from many of our learned colleagues on the subject of Mr Zuma's trial - that some individuals are so important that they should simply be above the law. This, madam speaker, is a point of view that pierces the very heart of our constitutional order.

Madam speaker, the suspension, the enquiry, the removal and the report to Parliament, forms a legally integrated process. The reasons advanced for the suspension and eventual removal from office have to be in accordance with one another. New reasons for the suspension cannot be brought in every time an existing reason is showed to be flawed.

Yet the goalposts have continued to move throughout. From the beginning, government showed an unnerving zeal in its pursuit of Advocate Pikoli. Dr Ginwala describes the pursuit of Advocate Pikoli in these words:

"The submissions implicate Advocate Pikoli even in matters that occurred prior to him taking office as the National Director. Some of the matters are, in relation to the date of suspension, so remote that the inference is that the Director General of Justice must have intended to throw a wide net to try to make something stick on Advocate Pikoli."

Is this not, madam speaker, as alarming a claim as any of the allegations made against Advocate Pikoli?

And similarly, madam speaker, should our real outrage not be directed towards what the Ginwala Report described as an "unlawful interfere[nce]" and "unconstitutional instruction" directed by the former Minister of Justice towards Advocate Pikoli?

In that letter, the Minister breaches her constitutional obligations in no uncertain words when she says to Advocate Pikoli: "you shall not pursue the route that you have taken."

The Minister's subsequent failure to appear before either the Ginwala Commission or the committee is telling.

Madam Speaker, I would direct you and the members to section 9 of the NPA Act. Here it is stated that a National Director must, and I quote, be a fit and proper person with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities of the office concerned.

Here, madam speaker, there is no reference to national security, or political security or any other kind of security. If a National Director must promote these things, it is only a cursory duty in light of his or her otherwise essential constitutional obligations. When faced with a decision between prosecuting an important figure in government, and letting the charges slide, it is quite clear that section 9 of the NPA Act envisages a National Director who will do everything in his or her power to ensure that the former course of action is undertaken.

Madam speaker, the term ‘national security' has been used repeatedly in attempts to excuse Advocate Pikoli's suspension. Yet this is a phrase of which we should be weary. It has been used in many instances to justify the otherwise unjustifiable. It fulfils this task by being suitably ambivalent - such that no-one quite knows to what it actually refers - but at the same time appealing to our emotions of patriotism. It is regrettable that such a dubious phrase is now in the vocabulary of our government.

Madam Speaker, government has failed to make its case. Of course we should not be surprised that the ad hoc committee reviewing this matter has come to a different conclusion. This committee consisted in the majority of MPs whose party leader now faces the prospect of a lengthily prison term if a new National Director is not appointed. Indeed, this committee went as far as to risk breaching parliamentary rules by refusing to allow the opposition to have their minority view state their own view in the committee's findings.

As Professor Pierre de Vos recently wrote on this unhappy matter: Sometimes the truth seems so blindingly obvious that one is tempted to believe that even our politicians would not be able to twist the facts to justify the indefensible.

Madam speaker, Advocate Pikoli's dismissal was unjustified not just because the Ginwala Report said it was; not just because members of the opposition say it was; not just because leading academics and legal experts say it was; but because plain common sense demands that it was. I would like to challenge my fellow parliamentarians to see this matter for what it really is. I do not believe that anyone here today could put hand on heart and say that Advocate Pikoli would still be in this position, had he not played his role in bringing cases against Mr Selebi and Mr Zuma. As such, madam speaker, I believe there is only one right course of action: Advocate Pikoli must be reinstated.

Issued by the Democratic Alliance, February 12 2009

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