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 REPL

I, the undersigned,

VUSUMZI PATRICK PIKOLI

make the following statement under oath:

INTRODUCTION

1. I am the applicant. This is my reply to the answering affidavits deposed to by President Zuma and Mr Fowler. I will not respond to all their allegations because most of them have already been canvassed in my founding affidavit and in my affidavits in the main application. I deny the allegations of President Zuma and Mr Fowler, if any, which have not been canvassed in any of my affidavits in this application and in the main application.

2. I have personal knowledge of the matters to which I depose in this affidavit. My submissions of law are based on the advice of my lawyers.

PRESIDENT ZUMA'S AFFIDAVIT

3. President Zuma says in paragraph 20 of his affidavit that the interim order I seek in this urgent application, "will effectively pre-judge the very issue which is to be decided in the main application". But that is a fundamental misconception. The purpose of this application is the very opposite. It is to maintain the status quo so as not to pre-empt this court's determination of the main application by restricting it in the exercise of its wide discretion to determine the relief afforded to me if I should succeed. This status quo has also prevailed since my suspension in September 2007. The delay since then has not been any of my making. I have been entirely captive of the state's processes. They were the enquiry undertaken by Dr Ginwala at the request of President Mbeki, the decision-making processes of President Motlanthe and the two Houses of Parliament, and the legal process since then which is now before this court. Both President Zuma and I are obliged to respect this process and not to pre-empt its outcome. The purpose of this application is to prevent President Zuma from doing so.

4. The central issue in this urgent application, is merely whether the status quo should be maintained pending the determination of the main application. This court need not even decide at this stage, whether the status quo should be maintained until the final determination of the main application. It need do no more than to maintain the status quo until it has heard the main application. The learned Deputy Judge-President of this court directed on 27 July 2009 that the main application be heard on 23, 24 and 25 November 2009. This court will then have the benefit of a thorough-going analysis of the evidence and submissions from both sides on the merits in the main application. It will be in a far better position than it is today, to determine whether the status quo should be maintained until the final determination of the main application if it should go on appeal. This court accordingly need not decide anything more today, than whether the status quo should be maintained until it has heard the main application. That will happen in November this year.

5. Most of President Zuma's allegations and submissions are based on the premise that I have been lawfully and validly removed from office. But that is with respect not the basis on which this court will determine this application. It cannot and should not decide the main application. It will merely evaluate the parties' respective prospects of success in the main application. This evaluation will moreover merely be one of the factors it will take into account. It will ultimately determine this application on the balance of convenience by having regard, not only to the parties' prospects of success, but also to the harm done to both sides if they should ultimately be vindicated. 

6. The court will accordingly weigh-up,

- the harm if any, to the President and the public interest, if the status quo which has prevailed since September 2007, were to be maintained until this court has had an opportunity to hear the main application in November and

- the harm if any, to me and the public interest, if the President were allowed at this stage, to disturb the status quo by appointing a new permanent NDPP whose appointment might be invalid and who might again have to be removed from office if this court were to find for me in the main application.

7. It appears from paragraphs 9, 13, 19.2, 19.4, 19.5, 19.6 and 19.8 of President Zuma's affidavit, that the only reason he wishes to go ahead with the appointment of a permanent NDPP at this stage, is that he deems it desirable that the functions of the NDPP be performed by a permanent and not an acting appointee. As he puts it in paragraph 9, "I am obliged to ensure effective functioning of all state departments including the National Prosecuting Authority". I submit with respect however for the reasons that follow, that he exaggerates the importance of this consideration and moreover fails to take account of a range of compelling countervailing considerations that have to be balanced against it.

8. President Zuma exaggerates the importance of executive efficiency in the first place because an Acting NDPP has been in office since September 2007. This has been entirely of the state's making. President Zuma also does not contend that the Acting NDPP has not duly and properly performed the functions of NDPP. On the contrary, President Zuma has been the beneficiary of the Acting NDPP's decision to withdraw criminal charges against him, which has probably been one of the most important and controversial decisions he has taken since he took office in September 2007. President Zuma does not advance any concrete reasons why this interim regime should now be terminated rather than to maintain the status quo until this court has had an opportunity to hear and determine the main application.

9. President Zuma's affidavit moreover shows no appreciation or even awareness of the fact that the need for executive efficiency has to be balanced against the following compelling constitutional principles.

9.1. The first is the maintenance of the rule of law entrenched as a founding value in s 1(c) of the Constitution. I submit for the reasons already advanced, that I was unlawfully suspended and ultimately removed from office. If this court ultimately vindicates me, the implication will be, not only that my suspension and removal were invalid, but also that the President does not have the power to appoint a permanent successor. His conduct in purporting to do so now, would be both an unlawful and egregious violation of the rule of law.

9.2. The second is the constitutional guarantee of prosecutorial independence. Section 179(4) of the Constitution provides that national legislation must ensure that the prosecuting authority "exercises its functions without fear, favour or prejudice". The Constitutional Court held in its Certification judgment that this requirement is "a constitutional guarantee of independence" of the prosecuting authority and that "any ... executive action inconsistent therewith would be subject to constitutional control by the courts".[1] The very essence of my case in the main application, is that my suspension and dismissal violated this guarantee. It lies at the heart of the issue this court will have to determine in the main application. It is thus vitally important that the status quo be maintained until this court has done so. If the President were to proceed to appoint a permanent successor in my stead while the main application is still pending before this court, it will not only pre-empt its outcome but will exacerbate the violation of the constitutional guarantee of prosecutorial independence by undermining it yet again.

9.3. The third important constitutional principle at stake, is that I am entitled in terms of ss 34, 38 and 172(1) of the Constitution, to an effective remedy for the violation of my constitutional rights.[2] This principle requires that the status quo be maintained so as not to undermine and restrict this court's discretion in its determination of the appropriate relief in the main application. It would be so restricted and its task complicated if a new permanent NDPP were appointed, because it would introduce a range of constitutional complications if I should be vindicated and the new appointee be removed from office, with adverse consequences to the appointee personally and the public interest. I elaborate on these complications below.

10. President Zuma is with respect under a misapprehension about his own power to appoint a new permanent NDPP and its implications, if this court should ultimately hold that my removal from office was unlawful:

10.1. He says in paragraph 8 of his affidavit that the decision to remove me from office "exists in fact and it has legal consequences that cannot simply be overlooked" from which he concludes that "currently there is no NDPP and it is my constitutional responsibility as the President of the Republic of South Africa to appoint a new permanent NDPP". But I submit with respect that he is mistaken. Under the doctrine of objective constitutional invalidity,[3] the implication of this court's finding in my favour in the main application, will be that my dismissal "was invalid ab initio and therefore has no effect in law".[4] The court's order will not invalidate my removal from office. It will merely declare it to have been invalid from the outset.[5] It would follow for the reasons set out in paragraph 19 of my founding affidavit, that the President does not have the power to appoint a permanent successor in my place. Such an appointment would be a nullity in law.

10.2. It appears moreover from paragraphs 16 and 17 of President Zuma's affidavit, that he does not appreciate that this outcome would be fraught with legal complexity and uncertainty. He says that the appointment of a new NDPP "will not create any legal uncertainty" and will on the contrary "regularise an unfortunate situation which ... is undesirable". But that is not so. If the appointment of a new permanent NDPP is invalid, it would follow that all his decisions in that capacity would also be invalid. His decisions to prosecute or not to prosecute, to reverse his own decisions to prosecute or not, or to endorse or overrule the decisions of other members of the NPA to prosecute or not, will all be rendered invalid. The prosecution of the accused pursuant to those decisions, would be invalid or at least fraught with legal complexity and uncertainty. The fabric of the rule of law would be threatened. The fact that President Zuma seems to be unaware of these implications and risks, means that his plan to appoint a new NDPP is based on a fundamental misconception.

11. I submit that President Zuma is with respect also mistaken about this court's duty to grant me effective relief if I should be vindicated in the main application and the impact an appointment of a new permanent NDPP would have on it:

11.1. I said in paragraph 21 of my founding affidavit, that I had little doubt that, if a new permanent NDPP were to be appointed before this application is finally determined, the President would argue that the fact of the new appointment renders its just and equitable that I should not be reinstated in office. President Zuma does not dispute this contention. On the contrary, he says in paragraph 18 of his answer that, even if I were to be successful in the main application, the question whether I should be reinstated "is very much in dispute". It is accordingly clear that he will use his own appointment of a new permanent NDPP as a stepping stone for an argument in the main application that, even if this court should hold that my removal from office was unlawful and invalid, I should not be reinstated because my place has already been taken by a new permanent NDPP who should be allowed to remain in office.

11.2. President Zuma goes on to say in paragraph 20 that "reinstatement is but one of the remedies that may be granted" to me if I succeed in the main application and in paragraph 24 that "delictual or constitutional damages" should suffice instead. But this is also a misconception. The option to leave office and to be paid my salary for the remainder of my term of office until February 2015, has been available to me since the day President Mbeki suspended me from office. Both he and Minister Mabandla asked me to resign before I was suspended from office. If I had agreed to do so, the state would have paid me my full salary for the remainder of my term of office. It would have given me a sum of money beyond my wildest dreams. I chose instead to decline the money and stand up for the constitutional principles of prosecutorial independence and the rule of law. I have paid a very heavy price for this stand. I am not a man of means and have a family to support. We have since my dismissal been living on borrowed money. It is vital to me to receive compensation for the time I have been unlawfully kept out of office. But that has never been my principal concern. It has always been to vindicate an important constitutional principle. To suggest that an amount of money should suffice to vindicate the constitutional violation perpetrated by my unlawful suspension and removal from office, is to misunderstand the very principle that I seek to vindicate in the main application.

11.3. President Zuma goes on to say in paragraph 24 of his affidavit that, what he calls "the issue of a constitutional guarantee" can be "cured by declaratory order or some other order that the court my find to be just and equitable". But a mere declaratory order will not be a vindication of the constitutional violation at all. This much is apparent from s 172(1) of the Constitution. Subsection (a) makes it clear that a declaration that my dismissal from office was inconsistent with the Constitution and invalid, will merely be the first step in, and the bare minimum of, the relief to which I will be entitled. Subsection (b) goes on to say that, over and above such a declaration, I am also entitled to such order as this court deems "just and equitable". The Constitutional Court made it clear in the TAC case that a declaration of invalidity is often not enough to afford a victim of a constitutional violation effective relief.[6] A mere declaration of invalidity would not vindicate the principle for which I have stood up and made much sacrifice. It would leave the consequences of the wrong in place and allow its perpetrators to escape with impunity.

12. I accordingly submit with respect,

- for the reasons set out in the main application, that the overwhelming likelihood is that I will succeed in the main application, and

- for the reasons set out in the main application and in this application, that the balance of convenience overwhelmingly requires that the status quo be maintained by the interim order I seek.

MR FOWLERS'S AFFIDAVIT

13. Fowler paragraph 6

It is not true that I suggested that the President "acted in a dilatory manner in order to prejudice (me)". I merely described the leisurely fashion in which the President acted in the conduct of the main application because it was inconsistent with his current contention that the public interest demands that a new permanent NDPP be urgently appointed even before this court has had an opportunity to consider and determine the main application.

14. Fowler paragraphs 8.1 and 8.2

The State Attorney said in the letter of 19 February 2009 annexure VP2, that the President "is currently taking advice with regard to the possible appointment of a new Director of Public Prosecutions" and that "no final decision in this regard will be made before the end of next week, i.e. Friday the 27^th February 2008" (which was meant to read "2009"). The clear implication was that the President was considering the appointment of a new NDPP, was taking advice on it, and would take a final decision on it by Friday 27 February 2009.

15. Fowler paragraph 8.3

I never blamed the President for the delay in filing his answering papers. I merely pointed out in paragraph 12.3 that it had taken him almost three months to do so. I mentioned it in the first place as one of the reasons why I had not launched this urgent application sooner. The leisurely pace at which the President filed his answering papers was moreover inconsistent with his current contention that the appointment of a new permanent NDPP is so urgent that it cannot wait until this court has heard and determined the main application.

16. Fowler paragraphs 9.2 and 9.3

Mr Fowler conflates paragraphs 12.6 and 13 of my founding affidavit and distorts both of them by saying that I accused the President's lawyers of a failure to display a sense of urgency. I did not accuse them of anything. They acted as lawyers always do when they engage to arrange a date for the hearing of a matter. The fact that my counsel was available sooner than the President's counsel, was purely fortuitous. The only point I made was that neither the President nor his counsel at any time suggested that there were compelling reasons to have the main application heard and determined as a matter of urgency and sooner than the dates suitable to counsel on both sides.

17. Fowler paragraph 10

The President's letter of 15 July 2009 by which my attorneys were informed that he intended to appoint a new permanent NDPP, indeed came "out of the blue". It came without warning and was quite inconsistent with the manner in which the President himself had until then acted in the conduct of the main application. 

18. Fowler paragraph 13

I have already dealt with Mr Fowler's interpretation of the State Attorney's letter of 19 February 2009, annexure VP2.

19. Fowler paragraph 18.2

I do not understand the point Mr Fowler makes in this paragraph. Neither I nor my lawyers have ever suggested that my counsel's availability should prevail over the public interest. If the President had at any time advanced good reason why the hearing of the main application could not wait until both his counsel and my counsel were available, I would have made every effort to accommodate an earlier hearing, even if it meant that all my counsel were not available to argue it. The only point I made was that neither side suggested that there was any compelling reason for the main application to be heard and determined sooner than the dates on which counsel on both sides were available.

CONCLUSION

20. I persist in my request for an interim interdict in the terms set out in my notice of motion.

_____________________________

VUSUMZI PATRICK PIKOLI

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[1] Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the RSA 1996 (4) SA 744 (CC) para 146

[2] Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC) paras 102 to 106; Minister of Home Affairs v NICRO 2005 (3) SA 280 (CC) paras 74 and 79; Van der Merwe v Road Accident Fund 2006 (4) 230 (CC) paras 71 and 77; Gory v Kolver 2007 (4) SA 97 (CC) para 40; Thint v NDPP; Zuma v NDPP 2009 (1) SA 1 (CC) paras 211 and 224; SA Liquor Traders' Association and others v Chairperson, Gauteng Liquor Board 2009 (1) SA 565 (CC) para 35

[3] Ferreira v Levin 1996 (1) SA 984 (CC) paras 25 to 30; Prince v President, Cape Law Society 2001 (2) SA 388 (CC) paras 36 to 37; Ex parte Women's Legal Aid Centre: In re Moise v Greater Germiston Transitional Local Council 2001 (4) SA 1288 (CC) paras 12 to 14; Ingledew v Financial Services Board 2003 (4) SA 584 (CC) para 20; Shaik v Minister of Justice and Constitutional Development 2004 (3) SA 599 (CC) para 27; Gory v Kolver 2007 (4) SA 97 (CC) para 39; Weare v Ndebele 2009 (1) SA 600 (CC) paras 39 to 40; Kruger v President of the RSA 2009 (1) SA 417 (CC) para 52

[4] Kruger v President of the RSA 2009 (1) SA 417 (CC) para 52

[5] Ferreira v Levin 1996 (1) SA 984 (CC) paras 27 to 28; Kruger v President of the RSA 2009 (1) SA 417 (CC) para 132; Weare v Ndebele 2009 (1) SA 600 (CC) para 39

[6] Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC) para 106