THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)
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 FOUNDING AFFIDAVIT
I, the undersigned,
VUSUMZI PATRICK PIKOLI
make the following statement under oath:
THE PURPOSE OF THIS APPLICATION
1. I was the National Director of Public Prosecutions until the President removed me from office on 8 December 2008. He purported to do so in terms of s 12(6)(a)(iv) of the National Prosecuting Authority Act 32 of 1998. It allows the President to remove the NDPP from office if he or she "is no longer a fit and proper person to hold the office concerned".
2. The President's decision has become final because the National Assembly resolved on 12 February 2009 and the National Council of Provinces (the "NCOP") resolved on 17 February 2009 in terms of s 12(6)(c) of the NPA Act, not to recommend my restoration to the office of NDPP.
3. The purpose of this application is to have the President's decision to remove me from office, reviewed, set aside and declared invalid. The grounds for this application fall into the following broad categories:
3.1. The first is that I am a fit and proper person to hold the office of NDPP. The President accordingly did not have the power to remove me from office in terms of s 12(6)(a)(iv) of the NPA Act. His decision to do so violated the principle of legality.
3.2. The second is that the President committed a range of procedural and substantive irregularities in making his decision to remove me from office. They render his decision reviewable in terms of the Promotion of Administrative Justice Act 3 of 2000.
3.3. The President's decision lastly violated the guarantee of prosecutorial independence implicit in s 179(4) of the Constitution.
4. I am not a man of means and my family and I are entirely dependent on my salary. That is however not why I bring this application. I would have brought it even if Government paid me my salary for the remainder of my term of office. My motive instead is to vindicate the Constitution, the rule of law and particularly the principle of prosecutorial independence implicit in s 179(4) of the Constitution. I passionately believe in these principles and have sworn an oath of office to uphold them. I believe that this application is necessary to vindicate them because my removal from office violated the principle of prosecutorial independence, the rule of law and the Constitution. If I do not make a stand, these values would be severely damaged.
5. I am the applicant. I am an advocate of this court. I live at Stand 93, Westlake Country and Safari Estate, Broederstroom.
6. The first respondent is the President of the Republic of South Africa of care of The State Attorney, 8th Floor, Bothonga Heights, 167 Andries Street, Pretoria. The current president Mr Motlanthe, succeeded his predecessor Mr Mbeki, in September 2008. I sometimes refer to them by name but, when I do not, the context indicates which of the two I have in mind.
7. The second respondent is The Speaker of the National Assembly of care of The State Attorney, 3rd Floor, Liberty Life Centre, 22 Long Street, Cape Town.
8. The third respondent is The Chair of the NCOP of care of The State Attorney, 3rd Floor, Liberty Life Centre, 22 Long Street, Cape Town.
9. I do not ask for any relief against the second and third respondents unless they oppose this application, in which event I ask for an order for costs against them. I cite them in this application only insofar as the National Assembly and the NCOP might have an interest in this application.
THE STRUCTURE OF THIS AFFIDAVIT
10. I will address the following topics in this affidavit:
10.1. The basic chronology of my suspension and dismissal and their aftermath.
10.2. The urgency of this application and its implications.
10.3. My fitness for office. I submit with respect that I am a fit and proper person to hold the office of NDPP and that my removal from office was accordingly not competent in terms of s 12(6)(a)(iv) of the NPA Act.
10.4. The President's reviewable irregularities. I submit that the President committed a range of procedural and substantive irregularities in taking his decision to remove me from office. They rendered his decision reviewable and invalid.
10.5. The constitutional guarantee of prosecutorial independence. I submit that my removal from office violated the constitutional guarantee of prosecutorial independence implicit in s 179(4) of the Constitution.
10.6. Remedy. I briefly deal with the relief I seek.
11. I shall refer to many Annexures to this affidavit. They have been placed in a separate, paginated file divided into sub-files with the annexures relevant to the following topics:
11.1. The five matters in respect of which Dr Ginwala made findings against me namely,
- the search at the Union Buildings in August 2005;
- the draft Browse report of March 2006;
- the Malawi request of May 2006;
- the listing of the Directorate of Special Operations of November 2006, and
- the culmination of the Selebi investigation in September 2007.
11.2. The Ginwala Report.
11.3. My dismissal.
12. I have personal knowledge of the facts to which I depose except where it is apparent from the context that I do not. Insofar as I rely on information given to me by Adv Gerhardus Cornelis ("Gerrie") Nel, I rely on his accompanying confirmatory affidavit. Insofar as I rely on any other information given to me by others of which I do not have personal knowledge, I rely on the fact of the communication and not the truth of its content.
13. I should say something about the basis on which I will annex and refer to Dr Ginwala's report:
13.1. I do so only because President Motlanthe said that his decision to remove me from office, was based on the Ginwala report. It does not constitute admissible evidence of the truth of its content. I will indeed show that it is wrong in certain respects.
13.2. I gave evidence in the Ginwala Enquiry. I do not annex the transcript of my evidence because it is not necessary for me to do so. I do however tender a transcript of my evidence to the respondents if they should wish to make use of it.
THE BASIC CHRONOLOGY OF MY DISMISSAL
14. I shall in this chapter give the basic chronology of my dismissal. I do so for the sake of a better understanding of what follows. I shall later deal with particular events in greater detail.
15. President Mbeki appointed me NDPP with effect from February 2005. He made the appointment in terms of s 179(1)(a) of the Constitution and s 10 of the NPA Act. The appointment was for a non-renewable term of ten years in terms of s 12(1) of the NPA Act.
16. The DSO investigated the murder of Mr Brett Kebble from early in 2006. Their investigation spawned further investigations inter alia into suspicions of serious criminal conduct by the National Commissioner of Police Mr Selebi. I regularly reported to the Minister and the President on this investigation.
17. On the weekend of Saturday 15 and Sunday 16 September 2007, I reported to President Mbeki that the DSO had obtained warrants for the arrest of Mr Selebi and for searches of his home and offices. The President asked me to delay the execution of the warrants for two weeks to allow him to make arrangements necessary for their execution. I said that two weeks was too long but that I would hold back the execution of the warrants for one week.
18. The following Tuesday 18 September 2007, the Minister of Justice gave me a letter out of the blue, in which she,
- told me that she 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" including all the evidence and other information gathered in the investigation, and
- asserted that she "must be satisfied that indeed the public interest will be served should you go ahead with your intended cause of action", and
- instructed me not to pursue the arrest and prosecution of Mr Selebi until she had satisfied herself "that sufficient information and evidence does exist for the arrest of and preference of charges against the National Commissioner".
Annexure 275 is a copy of her letter.
19. In my reply the following day, I made it clear to the Minister that I could not heed her instruction and intended to proceed with the arrest and prosecution of Mr Selebi. Annexure 277 is a copy of my letter.
20. I requested to see the Minister and the President. They agreed to see me that Sunday 23 September 2007, the Minister in the late afternoon and the President in the early evening.
21. I met with the Minister in the late afternoon of Sunday 23 September 2007. She asked me to resign because she said there had been a breakdown of trust between us. I was startled because this was clearly not so. I declined her request and told her that both of us knew that there had not been a breakdown of trust between us. She did not dispute this and merely said "Vusi this is all about integrity and one day I will talk". I do not know what she meant by this.
22. I met with the President in the early evening of Sunday 23 September 2007. He knew that the Minister had asked me to resign and that I had declined to do so. He told me that he would suspend me if I did not resign. I told him that I would still not do so. He then arranged for a letter of suspension to be prepared. While we waited, the President explained that he was suspending me because of their dissatisfaction with plea bargains and witness immunity arrangements that had been made. I assumed he had in mind plea bargains and witness immunity arrangements made in the course of the Selebi investigation in order to obtain evidence against him. The President did not mention any other reason for my suspension. When the letter of suspension had been prepared, he gave it to me and I left. Annexure 297 is a copy of the letter.
23. As appears from the letter, the President mentioned two reasons for my suspension:
23.1. The first was an accusation that I 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".
23.2. The President secondly said that the Minister had told him of "the breakdown of relations between your office and hers due to several incidents, such as your testimony to the Khampepe Commission of Inquiry".
24. The Sunday of my suspension was the last day of the week for which I had undertaken to the President the previous weekend, to suspend the execution of the Selebi warrants.
25. On Monday 24 September 2007 Government issued a public statement that I had been suspended from office due to "an irretrievable breakdown in the working relationship between the Minister of Justice and Constitutional Development and the NDPP". Annexure 300 is a copy of the statement. It went on to say that,
"The President considers the relationship between the Minister and the NDPP central to the effective administration of justice and the smooth functioning of the National Prosecuting Authority. The relationship breakdown had adverse implications for the NPA and the functioning of the criminal justice system."
26. The DG in the Presidency Reverend Chikane, also told the media on Monday 24 September 2007 that I had been suspended because "something had gone wrong in the exercise of (my) reporting to the Minister in terms of the Constitution". This appears from a news report published the following day. Annexure 301 is a copy of the report.
27. On 3 October 2007 President Mbeki appointed Dr Ginwala to enquire into my fitness to hold the office of NDPP. He made the appointment in terms of s 12(6)(a) of the NPA Act which permits him to cause such enquiry to be made into the NDPP's fitness for office "as the President deems fit". Dr Ginwala was the former Speaker of the National Assembly. She was also a senior and loyal member of the governing party of which Mr Mbeki was the President. Annexure 302 is a copy of her Terms of Reference.
28. The Ginwala Enquiry proceeded as follows:
28.1. On about 24 October 2007 the Government filed their complaints against me in the form of a statement by the Minister.
28.2. Dr Ginwala ordered the parties to file the evidence on which they rely by way of affidavit.
28.3. On about 17 January 2008 the Government filed affidavits of the evidence on which they relied.
28.4. On about 14 February 2008 I filed my own affidavit and those of supporting witnesses in response to the Government's charges against me.
28.5. The Government filed replying affidavits on about 25 February 2008.
28.6. The Government filed their heads of argument on about 4 April 2008.
28.7. My heads of argument were filed on about 11 April 2008.
28.8. The heads of argument persuaded Dr Ginwala that there were irresoluble disputes of fact on paper. She ordered the parties to adduce oral evidence on these disputes.
28.9. Dr Ginwala heard oral evidence from May 2008. The hearings concluded with the parties' closing submissions in August 2008. Both sides again filed written submissions for this purpose.
28.10. Dr Ginwala completed her report and submitted it to the President on 4 November 2008. Annexure 306 is a copy of her report. She concluded that the Government had failed to substantiate any of the grounds upon which they had contended that I was no longer fit for office. She recommended that I "be restored to the office of NDPP".[1] She made adverse findings against me on five issues but did not consider that they reflected on my fitness for office.
29. On 11 November 2008 the President's office invited me to make representations to the President on Dr Ginwala's adverse findings "in order to assist the President in making a final decision as to whether your client is a fit and proper person to continue to hold the office of NDPP". Annexure 524 is a copy of the letter.
30. Submissions on my behalf were delivered to the President on about 24 November 2008. Annexure 526 is a copy of my submissions. It was submitted on my behalf,
- that Dr Ginwala had fully vindicated me;
- that the Minister and DG for Justice who had been my principal accusers, were disgraced by the outcome of the Ginwala Enquiry, and
- that the five adverse findings were wrong and in any event did not detract from my fitness for office.
31. Despite Dr Ginwala's findings and recommendations to the contrary, the President removed me from office on 8 December 2008. Annexure 563 is a copy of the letter by which he did so.
32. On 11 December 2008 my attorneys addressed a letter to the President in which they asked him for the reasons for his decision to remove me from office. Annexure 569 is a copy of the letter.
33. The President's office replied on 17 December 2008. Annexure 570 is a copy of their reply. They said the President's reasons were those set out in his letter of dismissal of 8 December 2008.
34. The President referred the matter to Parliament in terms of s 12(6)(b) of the NPA Act. The two Houses of Parliament set up a Joint Ad-Hoc Committee to consider the matter. The Committee held public hearings into the matter.
35. The hearings commenced on 20 January 2009. The governing party's National Working Committee issued a public statement that same day, in which they expressed their support for the President's decision to remove me from office:
"The NWC confirmed the ANC's support for the decision of the President of the Republic, Kgalema Motlanthe, regarding the position of the National Director of Public Prosecutions. The meeting reaffirmed the need to move quickly to finalise this matter in parliament and ensure that the post is filled."
Annexure 572 is a copy of this statement.
36. I was the first witness on 20 January 2009. It was quite clear from the questions put to me by the members of the governing party, that the outcome was a foregone conclusion. None of their questions was designed to elicit information. All of them were attacks on me dressed up as questions.
37. On 22 January 2009 my attorneys addressed a letter to the President, Annexure 574. They informed him that, if parliament resolved not to recommend my restoration to office, I would approach this court for appropriate relief. They asked him to undertake that he would not appoint a permanent NDPP until the contemplated litigation had been finalised.
38. The President declined to give such an undertaking. His office replied on 26 January 2009 that he could not do so "because the matter would be considered finalised in terms of the processes provided for in the Act". Annexure 575 is a copy of their letter. The President's attitude is in other words that, if Parliament recommended not to recommend my restoration to office, the matter would be finalised and he would again be at liberty to appoint a new permanent NDPP.
39. The National Assembly resolved on 12 February 2009 and the NCOP resolved on 17 February 2009 in terms of s 12(6)(c) of the NPA Act, not to recommend my restoration to the office of NDPP. The President's decision to remove me from office thus became final.
40. I submit with respect that this application is urgent for the following reasons:
40.1. If this court should uphold this application, its implication would be that my removal from office was unlawful and invalid. If that is so, the President does not have the power to appoint a new permanent NDPP. Both the Constitution and the NPA Act only allow the President to appoint successive NDPPs. He does not have the power to appoint a new NDPP before the expiry of the term of office of the current NDPP. Any new permanent appointment the President might make, would accordingly be invalid.
40.2. It would in any event be contrary to the public interest for the President to make a new permanent appointment because the outcome of this application should be that I be restored to office. Such an appointment would be fraught with legal complexity and uncertainty.
40.3. The only lawful and practical solution, is for the President to appoint an Acting NDPP until this application is finalised. But it is highly undesirable that the office of NDPP be held by someone who only holds office on a temporary basis. An Acting NDPP simply does not have the same security of tenure and thus does not enjoy the same protection of his independence as a permanent incumbent. There has already been an Acting NDPP in office since my suspension on 23 September 2007. This state of affairs should be brought to an end as soon as reasonably possible. In other words, although the only viable solution is to keep an Acting NDPP in place until this litigation has been finalised, the period for which it is done should be kept as short as possible. It is accordingly in the public interest that this litigation be completed with utmost despatch.
40.4. In terms of s 12(1) of the NPA Act, I was appointed for a non-renewable term of ten years. My suspension has already kept me out of office since 23 September 2007, that is, for almost 18 months. This state of affairs will continue until this litigation has been finalised. The likelihood is accordingly that I will ultimately have been kept out office for two years or more. This part of my tenure will be lost forever. It will not only prejudice me but will also violate the principle of prosecutorial independence, for an incumbent NDPP effectively to be deprived of such a large part of his term of office without justification.
41. As a result of this urgency, I have caused this application to be launched as soon as possible after the President's decision became final. The normal time-periods allowed for a review under rule 53 of the rules of this court, have also been abridged in my notice of motion for the sake of expedition. They are however still long and I urge the respondents to prepare and file their papers with the same expedition as I have done to ensure the speedy finalisation of this matter. The abridged time periods in my notice of motion are obviously not cast in stone. If the respondents are unable to meet those deadlines, I will be happy to reconsider them, particularly if the President were to give appropriate undertakings to protect both my interests and the public interest.
42. The President has declined to undertake not to appoint a new NDPP on a permanent basis. I trust that he will reconsider once this application is launched. I trust that he will not make such an appointment in the face of this application and while these proceedings are still pending. Should there be any reason to fear however that he might do so, I reserve the right to apply to this court for an urgent interdict preventing him from doing so.
43. If the President does not give an appropriate undertaking in this regard, I will in any event seek an interdict along the lines contemplated in my notice of motion, to protect my interests and the public interest against the risk of the appointment of a new NDPP on a permanent basis pending the finalisation of this matter on appeal if it should one day go there.
44. The President purported to remove me from office in terms of s 12(6)(a)(iv) of the NPA Act. Section 12(6)(a)(iv) read with s 12(5), provide that the President may only remove the NDPP from office, "on account thereof that he or she is no longer a fit and proper person to hold the office concerned".
45. I submit that, on a proper interpretation of these provisions, the President may only remove the NDPP from office, if the latter is as a matter of fact no longer a fit and proper person to hold the office of NDPP. It is not enough for the President merely to believe that to be so. The test is an objective one.
46. The meaning of the requirement that the NDPP be a fit and proper person, may be gleaned from s 9(1)(b). It provides that a candidate for appointment as NDPP, must 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".
The requirement in other words speaks to the NDPP's fitness for office in relation to his experience, conscientiousness and integrity.
47. I find it difficult to speak about my own fitness for office. I prefer to let it be judged by others. I understand however that I must speak to it for purposes of this application. I submit with respect for the reasons that follow, that I am and have always been a fit and proper person to hold the office of NDPP.
48. My experience is unchallenged. I am today vastly more experienced than I was when President Mbeki first appointed me to the office of NDPP.
49. My conscientiousness is similarly unchallenged. The Government, President Mbeki and President Motlanthe have never suggested that I have been anything less than conscientious in the performance of my functions as NDPP.
50. An NDPP's qualifications, experience and conscientiousness, are the building blocks of his professional competence. It is accordingly significant that President Motlanthe himself confirms in paragraph 3 on page 3 of his letter of dismissal Annexure 563 at 565, that "Adv Pikoli's professional competence is not in question".
51. My integrity is also beyond question. The Ginwala report on which President Motlanthe based his decision to dismiss me, repeatedly vindicated both my integrity and my conscientiousness. Dr Ginwala held that I,
- "impressed me as a person of unimpeachable integrity";[2]
- "impressed me as a man of unquestionable integrity, with passion to execute his constitutional responsibilities without fear, favour or prejudice";[3] and
- "impressed me as a person of unimpeachable integrity and credibility".[4]
52. These findings leave no room for any suggestion that I am no longer fit for office. President Motlanthe has not challenged or doubted them in any way.
53. Dr Ginwala made adverse findings against me on five aspects or incidents in my performance of my functions as NDPP. President Motlanthe said in his letter of dismissal that they were the basis for his conclusion that I was no longer fit for office.
54. I submit with respect however that Dr Ginwala's five adverse findings do not justify President Motlanthe's conclusion for the following reasons:
54.1. I submit with respect that the adverse findings were wrong. I will deal with each of them and explain why I say so.
54.2. But even if the adverse findings were correct, they would still not justify President Motlanthe's conclusion that I am no longer fit for office. The adverse findings merely reflect Dr Ginwala's view of the manner in which I ought to have performed my functions as NDPP. I submit that she was wrong but even if she was right, her findings went no further than that I made mistakes in the performance of my functions as NDPP. But mistakes of this kind are human. I would be the first to admit that I sometimes make mistakes in the performance of my functions. The point for present purposes, is that Dr Ginwala's adverse findings do not reflect on my fitness for office. They do not impugn my experience, conscientiousness or integrity.
55. I will now discuss the five incidents in respect of which Dr Ginwala made her adverse findings. I will do so in the sequence in which they occurred. They are,
- the DSO's search of the former office of the former Deputy President Mr Zuma at the Union Buildings in August 2005;
- the draft Browse report of March 2006;
- the Malawi request for assistance of May 2006;
- the listing of the DSO in terms of the Public Finance Management Act 1 of 1999 in November 2006, and
- aspects of my conduct in the Selebi investigation in September 2007.
56. I point at the outset to the fact that all these incidents except the last one, happened long before my suspension in September 2007. Nobody had complained to me about them before I was suspended. I submit with respect that this has two implications:
56.1. The first is that it reflects on the credibility of the complaints. If Government was truly unhappy with my conduct, the Minister or the President would have said so. The fact that they made no complaint at the time, shows that their complaints are an afterthought.
56.2. The second is that I was never given an opportunity to reflect on and address these criticisms of my conduct which I would have done if they were raised with me at the time.
57. I submit with respect that these two factors together make it clear that these criticisms are an afterthought. Government raised them only when they had to justify my suspension which was in fact done for an ulterior purpose.
The search at the Union Buildings in August 2005
The Ginwala Report
58. Dr Ginwala discussed the search at the Union Buildings in her report Annexure 306 at,
- 319 para 11.9;
- 437 to 462 paras 214 to 238, and
- 510 to 511 paras 336 to 339.
She raised three criticisms of my conduct in relation to the search at the Union Buildings. I will deal with each of them in turn.
Background
59. In June 2005 the High Court convicted Mr Shabir Shaik of bribing the Deputy President Mr Zuma in collaboration with a French company Thint. Pursuant to the conviction, the President dismissed Mr Zuma as Deputy President. A few days later, I decided to prosecute both Mr Zuma and Thint on charges comparable to those of which Mr Shaik had been convicted.
60. The DSO conducted an investigation of the Zuma-Thint case. The Head of the DSO Adv McCarthy, was in overall charge of the investigation. The Investigating Director in immediate charge of it, was Adv Mngwengwe. He was assisted by the staff of the DSO.
61. In August 2005 the DSO undertook countrywide searches of more than 20 premises associated with Mr Zuma and Thint. They included Mr Zuma's former office at the Union Buildings in Pretoria when he was Deputy President. Senior Special Investigator Johan du Plooy with Adv Mngwengwe's consent, applied for and obtained warrants for the searches from the Judge President of this court in terms of s 29 of the NPA Act. The warrants were issued on about 12 August 2005. They were simultaneously executed on 18 August 2005.
62. After the warrants had been issued but before they were executed, I went to see the Minister and told her of the warrants and the plan to execute them inter alia at Mr Zuma's old office at the Union Buildings. I told her that I would also report the matter to the President.
63. I went to the President's home in Pretoria and informed him of the warrants and the plan to execute them inter alia at Mr Zuma's old office at the Union Buildings. The President asked me to discuss the matter with the Deputy President and with the DG in the Presidency Reverend Chikane.
64. I went to the Deputy President's home and informed her of the warrants and the plan to execute them inter alia at Mr Zuma's old office in the Union Buildings which she then occupied.
65. I saw Rev Chikane a few days before the warrants were executed. I told him of the plan to execute them inter alia at Mr Zuma's old office in the Union Buildings. I undertook to ensure that somebody from my office liaised with him before the execution of the warrants, so that they could agree on a procedure for their smooth execution.
66. The Minister, the President and the Deputy President did not raise any objection, reservation or concern about the search at the Union Buildings. Had they done so, I would obviously have addressed it.
67. I asked Adv Nel to call on Rev Chikane so that they could make the practical arrangements for the smooth execution of the warrant at the Union Buildings. He reported back to me that he had met the Rev Chikane and that they had made all the necessary arrangements for the execution of the warrant. I had no reason to believe that there was anything more that needed to be done to prepare for the search to ensure its smooth and safe execution.
My meeting with the Minister
Dr Ginwala criticised me for informing the Minister of the planned search at the Union Buildngs only after the warrants had been issued, albeit before they were executed:
"The fact that Advocate Pikoli did not inform the Minister of his intention to obtain the warrants of search and seizure of documents that were in the Union Buildings and Tuynhuys is a dereliction of duty on his part. It is a further example of his failure to consider it as his obligation to proactively inform the Minister of a high profile matter in which the NPA is involved. In this case he failed to inform the Minister in advance that he intended to obtain warrants of search and seizure especially as the searches were going to be conducted in a national key-point."[5]
68. I submit with respect that this criticism is unfair. I informed the Minister of the warrants before they were executed. I did so at a time when their execution was still entirely under my control. I could still address any objection, reservation or concern the Minister might raise. I would have been in no better position to do so if I had informed the Minister of the plan before the warrants were issued. The Minister did not complain that I should have reported the matter to her before the warrants were obtained and did not raise any objection, reservation or concern about their planned execution.
69. The Minister indeed never raised any complaints about the matter at any time thereafter. She did so for the first time after my suspension more than two years later as part of the Government's case against me in the Ginwala Enquiry. The complaint she then raised, was moreover a different one. She complained that I had not informed her of the warrants at all before they were executed. But that was simply not true. The variation of this complaint adopted by Dr Ginwala, was of her own making. The Minister has to this day not complained that, although I informed her of the warrants before their execution, I should have done so before they were issued.
Should a warrant have been obtained at all?
70. Dr Ginwala seems to suggest that it was not necessary to obtain a warrant to search the Union Buildings at all because the Presidency would have provided the evidence on request:
"There is no evidence to suggest that the NPA would have been refused access to any of the documents that would have been necessary for their investigation. Advocate Pikoli did not furnish any evidence suggesting that he was apprehensive that access to these documents at the Union Buildings and Tuynhuys would have been frustrated had he asked for such access."[6]
71. This criticism is surprising because it was not based on any complaint made by Government and was never raised with me in the Ginwala Enquiry. As appears from Dr Ginwala's own formulation of the criticism, it was based entirely on the absence of evidence of the kind she describes. But that was precisely because the issue had never been raised. It was accordingly quite unfair for her to criticise me purely on the basis of the absence of such evidence.
72. The application for the warrants was made by Special Senior Investigator, Johan du Plooy. It was his prerogative to do so in his capacity as the investigator. He applied for the warrants in terms of s 29 of the NPA Act. One of its requirements laid down by s 29(5)(c), is that the applicant for the warrant must satisfy the judge to whom the application is made, of "the need, in regard to the investigation, for a search and seizure in terms of this section". Mr du Plooy's application satisfied the Judge President of this court that there was a need for a search at the Union Buildings. It was accordingly quite inappropriate for Dr Ginwala to second-guess both the investigator and the Judge President of this court, by criticising the search of the Union Buildings, particularly as it was done without any evidence on the issue at all.
73. I must not be understood to disavow responsibility for the search at the Union Buildings. I knew and approved of it at the time. My point is merely that there is no basis for Dr Ginwala's criticism.
The security of classified information
74. Dr Ginwala expressed some criticism about the arrangements that were made to protect the security of the classified information seized at the Union Buildings:
"Whilst I am not satisfied that Government has established that there were in fact any security breaches during the search and seizure operation at the Union Buildings, the opportunity for such a breach to occur was present as a result of the utilisation of persons without appropriate security screening. Advocate Pikoli did not do enough to ensure that the security arrangements of the Presidency were adequately safeguarded."[7]
75. I submit with respect that this criticism is unfounded. I have already described the steps I personally took to ensure that the search at the Union Buildings was duly and properly executed. I told the Minister, the President, the Deputy President and Rev Chikane of the search well before it was executed. None of them raised any concerns of any kind. I deputised Adv Nel to agree on the practical arrangements with Rev Chikane to ensure that the search was duly and properly executed. He reported back to me that he had done so. I submit with respect that I was not required to do more than that.
76. I was subsequently told of the practical arrangements that were made to ensure that the security of any classified information seized at the Union Buildings was duly preserved. Adv Nel confirms by way of his confirmatory affidavit that they were indeed made. They included the following:
76.1. Mr Nel met Rev Chikane a few days before the execution of the warrant to make all the necessary arrangements for its execution. Rev Chikane deputised a member of his staff Ms Letsebe to liaise with the people responsible for the search to ensure its smooth execution.
76.2. There were initially six people assigned by the DSO to execute the search at the Union Buildings. They were three DSO employees and three expert forensic accountants from the firm KPMG who had been engaged by the DSO to assist with the Zuma-Thint investigation, who were later joined by an IT expert from Computer Security and Forensic Solutions. He was engaged to make clones or mirror images of computers to gain access to the information stored in them. It was necessary to engage him to do so because the DSO did not have the necessary expertise and SAPS also said on enquiry that they could not provide it. These outside experts from KPMG and CSF were duly appointed to assist with the searches in terms of s 29(1) of the NPA Act.
76.3. The search party was led by two members of the DSO, Adv Paul Louw who was the lead lawyer and Mr Naude who was a senior special investigator. The third member of the DSO was Special Investigator Yolisa Ntikinca.
76.4. When they arrived at the Union Buildings, Mr Nel introduced them to Rev Chikane who in turn introduced them to the members of his staff whom he had deputised to assist them with the search. They were Ms Letsebe and a legal officer in the Presidency Adv Vilakazi.
76.5. They made the following arrangements to protect the security of all documents and classified documents in particular:
76.5.1. The searchers first inspected documents to determine whether they fell within the scope of the warrant. If the document was classified, it was only inspected by Mr Louw or Mr Naude. Both of them had top-secret security clearances.
76.5.2. Whenever the searchers identified a document they wished to seize, they first gave it to Adv Vilikazi to satisfy herself that it fell within the scope of the warrant.
76.5.3. The classified documents the searchers wished to seize, were automatically sealed and left with the Presidency for later determination of their fate.
76.5.4. The treatment of the unclassified documents the searchers wished to seize, depended on whether Adv Vilakazi agreed that they fell within the scope of the warrant or not. If she agreed that they fell within the scope of the warrant, they were sealed but the DSO was allowed to take them away. If she did not agree that they fell within the scope of the warrant, then they were also sealed and left with the Presidency for later determination of their fate.
76.5.5. This arrangement meant that classified documents were only inspected by DSO inspectors with top secret security clearances and were then sealed and left with the Presidency for later determination of their fate. There was never any risk of a breach of their confidentiality at all.
76.6. The CSF IT expert made mirror images of the hard drives of the computers on the premises. He did so in the presence of the Presidency's own IT expert Ms Barkhuizen and IT experts from the National Intelligence Agency who had arrived to oversee the search. None of these experts raised any complaint or reservation about the procedure that was followed to clone the computer hard drives. The clones were sealed and locked in a safe which was subsequently locked in a safe at the Union Buildings under the control of the Presidency.
76.7. Nobody gained access to the information on the hard drives and there was never any risk at all of any breach of the security of any classified information, whether in hard copy or in electronic form.
77. After the search had been completed, the fate of the documents and mirror images had to be determined. An ad-hoc committee was established by the NPA, the Presidency and the NIA to perform this function. Adv Nel represented the NPA on this committee. He reported to me on its progress. I was also party to some of the correspondence exchanged between the parties. I refer in this regard to the following documents which are self-explanatory:
77.1. Annexure 120 is a copy of the minutes of a meeting of the ad hoc committee held on 22 August 2005.
77.2. Annexure 125 is a letter dated 5 September 2005 from the DG of the NIA to Reverend Chikane and myself.
77.3. Annexure 127 is another letter dated 8 September 2005 from the DG of the NIA to Reverend Chikane and myself.
77.4. Annexure 132 is a copy of my reply to the DG of the NIA dated 13 September 2005.
77.5. Annexure 134 is a letter dated 15 November 2005 from Adv Nel to the Acting DG of the Presidency.
78. I submit in the light of this history that Dr Ginwala's criticism of my role in relation to these security arrangements, was quite unfair:
78.1. There has been no suggestion that any of the material seized, fell beyond the scope of the warrant. As far as I know, it is common cause that their seizure was duly and properly authorised under the warrant.
78.2. It was in the first place the responsibility of the Presidency to protect the security of their own information. They knew that they could effectively do so by invoking the mechanism under s 29(11) of the NPA Act. They in fact did so by agreeing on a tailor-made mechanism based on s 29(11).
78.3. The security arrangements were indeed entirely satisfactory and effective. There was no breach of security and there was never ever any risk of such a breach.
78.4. Dr Ginwala's criticism of my conduct is in any event based on a quite unrealistic perception of the level of control that I exercise as NDPP, over the nuts and bolts of such a search. I submit with respect that the steps I took to ensure that it was duly and properly done and that the necessary safeguards were in place, were entirely appropriate and adequate.
Conclusion
79. I submit that Dr Ginwala's criticisms of my conduct in relation to the Union Buildings search, was unfounded.
80. I in any event submit that Dr Ginwala's criticisms go no further than to suggest that I had made mistakes in the performance of my functions. They do not in any way detract from my fitness for office.
The draft Browse Report of March 2006
The Ginwala Report
81. Dr Ginwala dealt with this matter in her report Annexure 306 at,
- 318 in paragraph 11.6;
- 422 to 430 in paragraphs 171 to 189, and
- 506 to 507 in paragraphs 325 to 328.
Background
82. The Browse Report was a "top secret" report prepared by a senior special investigator of the DSO in Cape Town. Annexure 137 is a copy of the report. The DSO exceeded their statutory mandate in doing the investigation on which the report was based in that it included intelligence gathering of a kind which is the exclusive domain of the NIA and the South African Security Service.
83. I only became aware of the investigation after it had been completed. I was told about it by the Head of the DSO Adv McCarthy. I understood from him that the events which led to the investigation and the report were the following:
83.1. Adv McCarthy received information from an "Investigating Judge in Switzerland that he had come across a number of corrupt transactions that involved government officials in Angola and money laundered through South African banks".
83.2. The DSO was monitoring Mr Zuma's bail conditions and noted that he had undertaken five trips to Libya, Angola and Mozambique between August and December 2005.
83.3. The DSO established that Mr Zuma had received income into his bank account which seemed to be unexplained.
83.4. There was media speculation about Mr Zuma's relationship with Libya.
83.5. Adv McCarthy received two further reports from informants. He raised the matter with a DSO Senior Special Investigator Mr Powell. Mr Powell told him that he had received similar information from informants.
83.6. Adv McCarthy said that, because he suspected unlawful money laundering, he asked Mr Powell to assess the available information and provide him with a report.
84. Adv McCarthy first mentioned the matter to me in March 2006, after Mr Powell had completed his investigation but before he had produced a report. Adv McCarthy gave me a copy of Mr Powell's draft report later in March or early April 2006. He told me that it was mere "work in progress", that it did not include any recommendations and that there were outstanding issues Mr Powell still had to consider. He recommended that I simply file the draft report and await Mr Powell's final report.
85. I superficially skimmed through Mr Powell's draft. I found some of its content startling but I did not give it any real consideration because I was told that it was an incomplete draft and that I should await the final report.
86. Adv McCarthy gave me the final report in July 2006. I then read it carefully for the first time. It became clear to me that, although there were aspects in the report that were the legitimate concern of the DSO, it had exceeded its mandate by engaging in intelligence gathering. I discussed it with Adv McCarthy and made it clear to him that the report did not have any place in the DSO and that they should not be involved in any further investigation of the matter.
87. I immediately arranged meetings with the DGs of the NIA and SASS to brief them on the matter and gave them copies of the report. I met them in July 2006, initially only with the DG of SASS because the DG of the NIA was not immediately available but later with both of them. I gave them copies of the report, briefed them on it and told them that this was not an investigation that the DSO should be running. They agreed with me. They also told me that they already had the information described in the report. We also agreed that there were huge question marks about the credibility of some of the information in the report.
88. I learnt in May the following year that the Browse Report had been leaked. I received a letter dated 17 May 2007 from attorneys acting for COSATU who said that the document had been leaked to them. Annexure 154 is a copy of the letter. I do not know who leaked the report. After I had been suspended from office, I learnt that a Parliamentary Committee had concluded that Mr Powell had leaked the report. I have no information that he had done so but I can also not dispute it.
89. I mentioned the report to the President in a meeting Adv McCarthy and I had with him on 20 May 2007. The President said that the DG of SASS had already told him about the report. I told the President that I intended to reply to the Cosatu attorneys that I was not in a position to assist them. The President agreed with this suggestion. He also asked me to meet with the Ministers of Intelligence, Safety and Security and Justice to brief them on the attorneys' letter and my response to it.
90. I replied to the attorneys' letter on 24 May 2007. Annexure 158 is a copy of my reply. I told them that I was not in a position to assist their client.
91. On 26 May 2007 I met with the Ministers of Justice, Intelligence and Safety and Security. I briefed them on the report, the attorneys' letter and my response to it.
92. I attended a meeting of the National Security Council on 30 May 2007. I explained to them how I had come into possession of the report and described my subsequent discussions with the DGs of the NIA and SASS. At this meeting, the President directed the DGs on the NSC to investigate the matter. I subsequently received a copy of their terms of reference, Annexure 159.
93. I received a letter dated 7 June 2007 from Rev Chikane asking me "to facilitate that the relevant entities and persons functioning under your authority form part of and co-operate with this investigation expeditiously and comprehensively, as directed and expected by the President." Annexure 160 is a copy of the letter.
94. I replied to Rev Chikane on 11 June 2007 "that this office pledges its full support and co-operation in this investigation". Annexure 161 is a copy of my letter.
95. On 11 June 2007 I addressed a memo to Adv McCarthy Annexure 162. I enclosed a copy of Reverend Chikane's letter of 7 June 2007 and asked Adv McCarthy to "ensure that all officials associated with this report co-operate fully with this investigation".
96. I also called a meeting attended by Adv McCarthy,and all the Regional and Divisional Heads of the DSO. I briefed them on the Browse Report, the fact that it had been leaked and the enquiry ordered by the President. I called each of them individually to account to tell me what they knew about the report. Most of them were quite taken aback by the news and knew nothing or very little about the report. I expressed my displeasure about the affair in the strongest terms. I also emphasized to them how important it was that all of them co-operate with the DGs responsible for the presidential investigation.
97. I was away from the office for most of July until 6 August 2007 as a result of the death of my mother. On my return to the office on 6 August 2007, Adv McCarthy reported to me on a number of developments which had taken place in my absence. Annexure 165 at 166 is an extract from his report dated 5 August 2005. Paragraph 3 dealt with the Presidential investigation.
98. It appeared that there had been some difference of opinion between Adv McCarthy and Mr Fraser, the Head of Operations of the NIA responsible for the Presidential investigation. Their differences related to the disclosure of the names of certain confidential informants because Adv McCarthy felt that the confidentiality of the identity of some of them should be protected. He set out his views in a letter to Mr Fraser on 18 July 2007, Annexure 163. As appears from his subsequent report to me on 5 August 2007 Annexure 165 at 166, he and Mr Fraser were in the process of ironing out their difficulties.
99. After I had left office, a Parliamentary Committee which had also investigated the Browse Report, published a report of their investigation, Annexure 167. As appears from page 6 of the report (Annexure 172), Adv McCarthy had described my reaction to the report in July 2006 as follows:
"Pikoli's attitude, he stated, was that the report had all the hallmarks of the Military Intelligence and Defence Intelligence structures of the past and that they should dissociate themselves from it."
100. During the Ginwala hearings in 2008, I attempted to obtain a copy of the draft Browse Report which Adv McCarthy had given me in March or early April 2006. I could not look for the report myself because I was under suspension. I asked the people in my office to look for it. They reported that they could not find a copy of the draft report. I do not know what happened to it but I note that, in Adv McCarthy's report to me after my return to the office dated 5 August 2007, Annexure 165 at 166, he mentioned that, because of "the sensitivity and poor handling of correspondence", he had "given an only set/copy (of the Browse Report) to Ms K Pillay for safe-keeping and access by you". I surmise that, for the reasons he mentioned, he destroyed all copies of the draft and final reports except the one copy of the final report he entrusted to my assistant Ms Pillay.
101. I turn against this background to Dr Ginwala's criticism of my conduct.
My failure to reprimand Adv McCarthy
102. Dr Ginwala criticised my failure to reprimand Adv McCarthy for conducting the Browse investigation beyond the mandate of the DSO and for failing to co-operate fully with the Presidential investigation:
"It is my view that despite lacking the authority to formally discipline the Head of the DSO, it was open to him to reprimand the Head of the DSO for conducting the Browse investigation and preparing an intelligence report beyond the mandate of the DSO, as well as for failing to fully co-operate with the investigation by the Task Team. The Head of the DSO would then have had an opportunity, if he had a defence to the conduct, to raise such a defence or justification."[8]
103. But the thrust of this criticism is hard to fathom. Dr Ginwala recognised that I did not have the power to take formal steps against Adv McCarthy. What I did, was to express my disapproval of the matter to him in the strongest terms. I submit with respect that it would not have been appropriate for me to do anything more than that.
My failure to take action in March 2006
104. Dr Ginwala criticised me for not taking action on the matter when I received the draft in March 2006 instead of doing so only when I received the final report in July 2006:
"Advocate Pikoli must be criticised for not raising this matter with the Minister or the relevant intelligence structures as soon as it came to his attention in March 2006, and for not instructing the Head of the DSO not to proceed with the report... It is not beyond reason to surmise that the preliminary report would have indicated the gravity of the issues that were ultimately reflected in the final report and also that the issues it addressed were intelligence matters outside the mandate of the DSO."[9]
"Advocate Pikoli was obliged to inform the Minister in March 2006 of the information gleaned as a result of the Browse Mole Investigation and to stop any further work on the report by the DSO. Had he taken this action, he could have limited the damage caused by this intelligence gathering exercise."
105. The criticism that I should have taken decisive action in March 2006 when I received the draft report, is with respect unfair. The investigation had been completed. All I had was a draft report which, in Adv McCarthy's words, was mere "work in progress". He suggested that I file it and await the final report. I adopted his suggestion because it seemed sensible to do so. The suggestion that, if I had acted more decisively, the later harm done by the report could have been avoided, is with respect unfair. It is based on the wisdom of hindsight.
General criticism of my handling of the matter
106. Dr Ginwala lastly expressed general criticism of my handling of the Browse Report:
"The behaviour of Advocate Pikoli in dealing with the Browse Mole Report is indicative of his lack of sensitivity in dealing with matters of national security. This is of particular concern when the matters are of a politically sensitive nature and such as may impact on South Africa's relations with other countries."[10]
107. It is difficult for me to respond to this criticism because it is so vague and general. I submit with respect that my handling of the matter was entirely appropriate. Dr Ginwala's criticism is again the product of hindsight
Conclusions
108. I submit that the criticism of my handling of the Browse report is unfair and unfounded.
109. I submit in any event that it does not in any way impugn my fitness for office, even if justified.
The Malawi request of May 2006
The Ginwala Report
110. Dr Ginwala dealt with this issue in her report, Annexure 306, at,
- 318 in paragraph 11.7;
- 432 to 438 in paragraphs 190 to 198, and
- 508 to 509 in paragraphs 329 to 331.
Background
111. On about 24 May 2006, I received a request for mutual legal assistance from the Director of Public Prosecutions of Malawi. Annexure 177 is a copy of the request. The DPP said that they had arrested two Malawian citizens on a charge of conspiring to assassinate the President of Malawi. The suspects had travelled to South Africa to hire assassins. The prospective "assassins" played along with them "merely to obtain information and so as to alert the Government of the Republic of Malawi" and had since then been "highly co-operative". The Malawian authorities sought the NPA's assistance to obtain certain hotel and telephone records to confirm the evidence of the "assassins" who were now state witnesses.
112. I asked Adv Dwane-Alpman of my office to forward the request to the Department of Justice in terms of s 7(1) of the International Co-operation in Criminal Matters Act 75 of 1996. It provides that a request for mutual legal assistance "shall be submitted to the Director-General" of Justice. On 24 May 2006 Ms Dwane-Alpman forwarded the request to the Department of Justice (Annexure 182) and informed the DPP of Malawi that he had done so (Annexure 183).
113. On 25 May 2006 the Department of Justice acknowledged receipt of the request but added that it would be fruitless for the Malawian investigators to come to South Africa "before our Minister has approved the request in terms of section 7 of ICCM". Annexure 184 is a copy of his fax.
114. On 13 June 2006 the DPP of Malawi sent an e-mail to Ms Dwane-Alpman saying that he intended to come and see us in the course of the following week. Annexure 185 is a copy of his e-mail.
115. On about 15 June 2006 the DPP of Malawi telephoned me to arrange a meeting. I agreed to meet him but invited the DG of Justice to join the meeting because it would be his prerogative to deal with the request in terms of s 7 of the ICCM Act.
116. On 16 June 2006 I received a letter from the DPP of Malawi confirming the arrangements for the meeting on 19 June 2006. Annexure 186 is a copy of his letter.
117. On 19 June 2006 the DG of Justice and I met with the DPP of Malawi in my office. He explained his request. I told him that, before we could offer any assistance, he had to lodge a formal request with the DG of Justice in terms of s 7 of the ICCM Act.
118. Pursuant to the meeting, the DPP of Malawi lodged a formal request with the DG of Justice on 20 June 2006. Annexure 188 is a copy of his request.
119. At about that time and in one of my routine meetings with the DG of SASS in relation to another matter, I mentioned the Malawian request to him. He told me that they were already aware of it.
120. On about 2 August 2006 I received a letter from the Department of Justice informing me that,
"the Minister has been notified of the (Malawian) request and her approval in terms of section 7 of the International Co-operation in Criminal Matters Act, 1996 (Act 75 of 1996) to render the necessary legal assistance to the Malawian authorities has been obtained."
Annexure 192 is a copy of the letter. It went on to say that the request had been forwarded to the magistrates in Isando and Durban to gather the evidence sought by the Malawian authorities.
121. On about 31 August 2006 the Deputy DPP in the Priority Crimes Litigation Unit requested the Deputy DPP of the Witwatersrand Local Division to assist with the request. Annexure 193 is a copy of his letter.
122. On 8 November 2006 the Deputy DPP of the Witwatersrand Local Division reported to me that the investigation had been finalised. Annexure 194 is a copy of his letter.
123. On 13 November 2006 Ms Dwane-Alpman forwarded the evidence which had been gathered to the Department of Justice. Annexure 195 is a copy of her covering letter.
124. On 6 December 2006 the Department of Justice acknowledged receipt of Ms Dwane-Alpman's letter and expressed appreciation for the assistance rendered by the NPA. Annexure 196 is a copy of their letter.
Dr Ginwala's criticism
125. Dr Ginwala acknowledged that the DG of Justice was obliged to report the matter to the Minister of Justice in terms of the ICCM Act but criticised me for not doing so as well:
"Similarly Advocate Pikoli had such a responsibility to the Minister to alert her when he first became aware of this conspiracy, and he failed to do so. This constituted a failure to appreciate the responsibility of an NDPP to appraise the Minister on an issue that may impact on matters of national security."[11]
"However, he ought, in my view to have brought to the attention of the Minister that there was a plot to assassinate the Malawian President involving South African citizens and which was at least partially planned in South Africa. These are matters of national security which the Executive is entitled to know in order to advise itself on what position to take in its global relations and international responsibilities."[12]
126. I submit with respect that this criticism is unfounded:
126.1. I reported the matter to the DG of Justice at the outset as I was required to do in terms of s 7(1) of the ICCM Act.
126.2. In terms of s 7(4) of the ICCM Act, the DG of Justice was obliged to "submit the request ... to the Minister for his or her approval".
126.3. The DG of Justice must have done so because the Department of Justice said in their letter to me on 2 August 2006 that,
"The Minister has been notified of the (Malawian) request and her approval in terms of section 7 of the International Co-operation in Criminal Matters Act ... has been obtained."
126.4. I also mentioned the matter to the DG of SASS who told me that they were already aware of it.
126.5. There was in the circumstances no reason for me to report the matter to the Minister as well. She never complained about my failure to do so. Government first complained of it after my suspension. It was an afterthought contrived to justify my dismissal.
127. Dr Ginwala's assertions that this was a matter "of national security",[13] and a matter which implicated South Africa's "global relations and international responsibilities"[14] was with respect highly overblown.
Conclusions
128. I submit with respect that Dr Ginwala's criticism is unfair and unfounded.
129. Alternatively, even if it is justified, it in any event does not impugn my fitness for office.
The listing of the DSO in terms of the PFMA in November 2006
The Ginwala Report
130. Dr Ginwala dealt with this matter in her report, Annexure 306, at,
- 317 in paragraph 11.4;
- 417 to 421 in paragraphs 161 to 170, and
- 505 to 506 in paragraphs 323 to 324.
Background
131. In terms of s 46 of the PFMA, the provisions of Chapter VI apply to "all public entities listed in Schedule 2 or 3". Schedules 2 and 3 are lists of "Major Public Entities" and "Other Public Entities" respectively. Section 47 of the PFMA recognises that they might not be complete and creates a mechanism for any unlisted public entities to be added to the list in Schedule 3:
131.1. Section 47(1) provides that the Minister of Finance must amend Schedule 3 to include in the list all public entities that are not listed.
131.2. Section 47(2) provides that the accounting authority of a public entity not listed in Schedules 2 and 3, "must, without delay, notify the National Treasury, in writing, that the public entity is not listed".
132. The DSO was not listed as a public entity. I believed on the basis of legal advice I had received, that it was a public entity and that we accordingly had to notify Treasury in terms of s 47(2) that it was not listed:
132.1. Section 1 of the PFMA defines a "public entity" to mean "a national or provincial public entity".
132.2. It defines a "national public entity" to include any, "other entity (other than a national government business enterprise) which is -
(i) established in terms of national legislation;
(ii) fully or substantially funded ... from the National Revenue Fund ...; and
(iii) accountable to Parliament."
132.3. The DSO clearly seemed to be a national public entity within the meaning of the part of the definition I have quoted. There was accordingly a duty on us in terms of s 47(2) to report its status to Treasury "without delay".
133. On about 28 March 2006 I prepared a memorandum to the Minister in which I recommended,
- that she promotes an amendment of s 36 of the NPA Act to provide for the NPA to have its own Chief Executive Officer, and
- that she requests the Minister of Finance to list the DSO as a public entity in terms of s 47(1) of the PFMA.
Annexure 197 is a copy of the memorandum. The second recommendation was badly phrased because it was not for the Minister to request the listing of the DSO but for the CEO of the DSO to do so in terms of s 47(2).
134. I did not immediately give the memorandum to the Minister as I first wanted to discuss it with her before I did so. I only discussed it with her on 11 June 2006. The Minister indicated that she had no objection in principle to my proposals but wanted to consider the proposed amendment of the PFMA more fully before taking a decision on it.
135. Immediately after the meeting, I made the following handwritten note on the last page of the memorandum (Annexure 214) before forwarding it to the Minister:
"Following my discussions on 11.06.06 at your house I submit this memo which I have kept since March pending my discussions with you on the subject matter which I felt needed a personal discussion first.
I also wish to confirm that you authorised discussions between Treasury, DG Justice and ourselves to go ahead in the meantime.
I also further confirm the Auditor-General has warned us of a possible qualification of our financial statements, i.e. between DOJ and NPA if this matter is not resolved quickly and the Audit Committee is also anxious as to the finalisation of the matter."
136. On 15 June 2006 the DG of Justice noted on the last page of my memorandum that the matter should be considered after the National Security Council had considered the DG's note regarding the implementation of the Khampepe Commission Report.
137. On 21 June 2006 the Minister recorded the following note on the last page of my memorandum:
"This is a huge policy matter we cannot deal with it in this manner. We can continue temporarily with the current arrangement even that move should be discussed especially in the context of Khampepe's recommendations, DG and NDPP should discuss an interim measure."
138. I was surprised by this note as it did not accord with my discussion with the Minister on 11 June 2006. I accepted that the Minister wanted to give the issue of the amendment of the NPA Act further thought. I did not, however, get the impression that she had a problem with the listing of the DSO. I decided that it was necessary to send her a separate memorandum on this issue because it could not be controversial and we were in any event obliged in terms of s 47(2) of the PFMA to notify Treasury of the DSO's unlisted status "without delay".
139. On 7 August 2006 I sent a second memorandum to the Minister but this time limited to the listing of the DSO. Annexure 215 is a copy of the memorandum. I recorded in paragraph 2.2 that the Minister had "indicated that in principle she supports these proposals, but that the NPA listing requires further consultation." I also made the point that, because the DSO was an unlisted public entity, we were obliged in terms of s 47(2) of the PFMA, to notify Treasury of that fact. I concluded by recommending that the Minister approach Treasury in terms of s 47.
140. On 23 August 2006 the Minister responded with the following note on the last page of my memorandum (Annexure 223):
"This is a huge policy departure. It must be discussed by Cabinet."
I submit with respect that the Minister was quite wrong. We were obliged in terms of s 47(2) of the PFMA to report the DSO's unlisted status to Treasury "without delay". It was not a "huge policy departure" open for discussion.
141. On 24 and 25 August 2006 I attended a DSO Strategy Review Session. The listing of the DSO was one of the issues we discussed. We all agreed that we were obliged to notify Treasury of the DSO's status in terms of s 47(2).
142. On 13 September 2006 I submitted a third memorandum to the Minister. Annexure 228 is a copy of the memorandum. I made the point that the NPA did not agree that the proposal that we notify Treasury of the DSO's unlisted status was a policy departure because we were obliged to give them notice in terms of s 47(2) of the PFMA.
143. The Minister did not respond to my third memorandum. She has to this day not done so. When she had not done so by 24 November 2006, I wrote to the DG of Treasury informing him of the DSO's unlisted status. Annexure 237 is a copy of my letter.
144. A draft of the NPA's annual report for the 2006-2007 year, was sent to the Minister in about April or May 2007. It recorded that we had requested Treasury to list the DSO as a public entity in terms of the PFMA. The Minister must accordingly have learnt of this request by no later than May 2007. She did however not complain about it at any time until after my suspension when she raised it for the first time as one of the complaints against me.
Dr Ginwala's criticism
145. Dr Ginwala acknowledged that we were obliged to notify Treasury of the DSO's unlisted status without delay in terms of s 47(2) of the PFMA.[15] She expressed mild criticism however of my failure to inform the Minister that I intended to proceed to do so:
"I do however believe that Advocate Pikoli should have again advised the Minister that he was now proceeding to write to Treasury regarding the listing of the DSO before despatching his letter of 24 November 2006. This is despite the Minister not responding to his memorandum of 13 September 2006.
However it must be pointed out that the incident took place in November 2006 and was never raised with Advocate Pikoli as a complaint until the Enquiry."[16]
146. I accept on reflection that I should have shown the Minister the courtesy of telling her that I intended to notify Treasury of the DSO's unlisted status before I did so on 24 November 2006. I submit with respect however that my failure to do so was not a dereliction of duty and that it in any event did not reflect on my fitness for office.
The planned arrest and prosecution of Mr Selebi in September 2007
Ginwala Report
147. Dr Ginwala dealt with this matter in her report, Annexure 306, at,
- 319 to 321 paras 11.10 to 13;
- 462 to 495 paras 239 to 300, and
- 511 to 515 paras 340 to 348.
148. The story of the investigation and planned arrest and prosecution of the National Commissioner of Police Mr Selebi, is a long one which started early in 2006 and culminated in my suspension in September 2007. I will however truncate the story for two reasons:
148.1. The first is that the adverse findings Dr Ginwala made against me, are limited to my conduct in September 2007 shortly before my suspension.
148.2. Dr Ginwala also criticised me for conversations I had with President Mbeki over the weekend of 15 and 16 September 2007 when he asked me to suspend the execution of the Selebi warrants for two weeks but I agreed only to do so for one week. I will refer to it as my "two week-one week" conversations with the President. Dr Ginwala did not make any adverse findings against me on this score because she recognised that it would be unfair to do so because it had never formed part of the Government's complaints against me. President Motlanthe however made much of this criticism in his letter of dismissal. I will accordingly focus on this conversation and its implications in a separate section that follows this one.
Background
149. In January 2006 Ms De Beer, the Director of Public Prosecutions in Johannesburg, reported to me that there was reason to be suspicious of Mr Selebi's role in the investigation of the murder of Mr Brett Kebble. She asked the DSO to assist with the investigation. Her request triggered the DSO's investigation of the Kebble murder which in turn led to their investigation of Mr Selebi.
150. I went to extraordinary lengths over the next 18 months, to keep both the Minister and the President fully informed of all developments in the investigation:
150.1. I 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.
150.2. I furnished the Minister with written reports on the Selebi investigation on 19 March 2007 and 19 September 2007. I also gave her a copy of my report to the President of 7 May 2007.
150.3. I 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.
150.4. I submitted written reports to the President on the Selebi investigation on 7 May 2007 and 16 September 2007.
151. One of the frustrations of this investigation, was that SAPS persistently frustrated all the DSO's attempts to obtain evidence from them. Dr Ginwala fairly described these attempts in her report (Annexure 306) from 464 to 469 in paragraphs 245 to 252. She summarised them as follows from 470 to 471 in paragraphs 255 and 256:
"The assessment of the evidence shows a patient and elaborate attempt by the DSO to obtain the documents from the SAPS. These attempts did not meet with any great success. It is evident that part of what rendered co-operation difficult, must have been the fact that the documents that the DSO wanted, related to the investigation around the National Commissioner of Police. This suspicion is strengthened as the Deputy National Commissioner of Police said one of the impediments was the desire on the part of SAPS to know ‘what and against whom the DSO investigation relates'. The DSO must also have harboured a clear suspicion that by disclosing their full hand that they were investigating the National Commissioner of Police would have held a risk that the documents were either not made available or were destroyed.
I can understand the frustration of the DSO that the difficulties being placed in their way which prevented them gaining access to documents that were necessary to facilitate their investigations."
152. I described some of these frustrations in my memorandum to the Minister of 19 March 2007, Annexure 246. I concluded by saying that "We will have no alternative but to seek the assistance of the courts to obtain the relief we require."
153. On 17 April 2007 the four Deputy NDPP's and I met the investigation team. They briefed us on the status of the investigation and their inability to get SAPS to co-operate with them. The Deputy NDPP's and I agreed with the investigation team that we should proceed with an application for a search warrant in the light of our failure to obtain any co-operation from SAPS.
154. As a last resort, I appealed to the President for help. I did so by a memorandum of 7 May 2007, Annexure 252. I point to the following features of the memorandum:
154.1. I told the President that the DSO intended seeking a search warrant under s 29 of the NPA Act which was a drastic step and would mean,
"that they would physically enter the premises of the police and the home of the National Commissioner, inspect items and seize anything that might have a bearing on this case".[17]
154.2. I appealed to the President for his intervention "otherwise the DSO will have no option but to proceed with the application" for search warrants.[18]
154.3. I summarised the evidence obtained in the course of the investigation and the attempts to obtain evidence from SAPS.[19]
154.4. I told the President of our decision of 17 April 2007 to apply for search warrants "as all reasonable steps towards co-operation between the DSO and SAPS have failed".[20]
154.5. I added however that the DSO "would be willing to embark on a ‘friendly' search for the documents and items identified in the application for a search warrant". I explained that the DSO would be amenable to enter the premises of SAPS in a way which did not draw any attention and would conduct their search in a way and at a time which did not cause embarrassment to or affect the operations of SAPS.
154.6. I concluded by saying that time was of the essence and that the investigation team would like to take whatever steps were necessary to gain access to the documents by 8 May 2007.[21] This deadline was a mistake. It was a product of an earlier draft of the memorandum. I told the President so shortly after the memorandum had been delivered to him.
155. In response to my memorandum, the President convened a meeting on 9 May 2007. Adv McCarthy and I attended the meeting. It was also attended by Mr Selebi and Commissioners Williams, Lalla, Mphego and Tshabalala of SAPS:
155.1. The President said that the purpose of the meeting was to facilitate co-operation between SAPS and the DSO so that the DSO could get the information it required.
155.2. Mr Selebi suggested that SAPS had co-operated fully but that the DSO was moving the goalposts. He accused the DSO of acting with an ulterior motive to discredit him and SAPS. Both Mr McCarthy and I denied that this was so.
155.3. Adv McCarthy asked at one point that he and I have a private discussion with the President and Mr Selebi. The President agreed. The others left the meeting. Adv McCarthy assured the President and Mr Selebi that the DSO genuinely required the information for purposes of their investigation. The President said that if the evidence revealed that Mr Selebi was corrupt, he would also want to know whether other senior SAPS officials were also corrupt. The President directed SAPS to co-operate with the DSO and provide the information they required.
155.4. As we were leaving, the President told Commissioner Lalla to liaise with Adv McCarthy to facilitate the production of the evidence the DSO required.
156. Pursuant to the President's directive, the investigation team met with SAPS on 18 May 2007, on 23 May 2007, on 4 June 2007 and again on 6 June 2007. They reported back to me that SAPS was as recalcitrant as ever. They apparently allowed the investigating team to look at certain critical documents but would not allow them to take copies of those documents. They said that SAPS did not offer any rational explanation for their refusal and indeed that, at the meeting on 4 June 2007, Commissioner Williams challenged the DSO to seek search warrants instead. Adv Nel gave the following evidence on this score at the Ginwala Enquiry which he confirms by way of his confirmatory affidavit:
"Commissioner Williams indicated to us that we should go to the High Court. ‘Take the legal route, go to the High Court, I am not handing over documents.' He also says ‘I am going back to the Commissioner, I am going to brief him. I will tell him that the President wants us to hand over ... The Commissioner is still part of the process, he must be informed'."
157. Adv McCarthy reported to me that he had met with the President and the Rev Chikane on 27 May 2007. He said that he had briefed them in detail on the progress with the Selebi investigation and particularly on the difficulties the DSO was still experiencing in securing full co-operation from SAPS.
158. On 5 June 2007 the investigation team again briefed the four Deputy NDPP's and me on their inability to get any co-operation from SAPS. I suggested that they accompany me to the Minister to give her a full briefing on the matter.
159. On 25 June 2007 the investigation team led by Adv Nel and I met with the Minister to brief her on the investigation. Adv Nel led the briefing. He gave the Minister a full account of the investigation to date and outlined how SAPS had refused to co-operate fully with the DSO. He described the urgent steps that needed to be taken to secure further information and that this would necessitate an application for search warrants. He made it clear 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.
160. The Minister did not raise any reservations about our intended course of action. She said she regarded it as a crisis that will shake the foundation of the country. She urged us not to have a long drawn-out trial and to resolve matters as quickly as possible.
161. Shortly after this meeting my mother became very ill and I had to return to our family home in the Eastern Cape. My mother passed away as a result of which I was out of the office for most of July until 6 August 2007.
162. While I was out of the office, I requested Adv McCarthy to report the recent developments to the President. On my return to the office, Adv McCarthy gave me a written report dated 5 August 2007 on a variety of matters that had occurred during my absence. Annexure 266 at 267 is an extract from the report. As appears from it, Adv McCarthy reported that he had met with Reverend Chikane and had briefed him on the DSO's failure to obtain co-operation from SAPS. Reverend Chikane had indicated to him that he would arrange for me to see the President the following week.
163. I asked my office on 8 August 2007 to arrange an urgent meeting with the President. They reported to me that they made repeated attempts to set up such a meeting from 8 August until 12 September 2007 but were unsuccessful in doing so.
164. On 30 and 31 August 2007 the four Deputy NDPP's and I met with the investigation team to decide how to proceed. We again worked through all the evidence and ultimately decided that the DSO should go ahead with their applications for warrants for the arrest of Mr Selebi and for searches of his home and office. I told them however that, once they had obtained the warrants, they should notify me and hold back their execution because I first wanted to brief the President.
165. On 10 September 2007 the DSO obtained a warrant for Mr Selebi's arrest.
166. On 11 September 2007 I met the Minister and told her of the warrant for Mr Selebi's arrest. I asked her to inform the President of this development and to arrange for me to meet the President. She agreed to do so.
167. On 14 September 2007 the DSO obtained warrants to search Mr Selebi's home and offices.
168. On Saturday 15 September 2007 I met with the President and Rev Chikane:
168.1. I told them that the DSO had obtained warrants to arrest Mr Selebi and search his home and offices. The President was surprised and said that he was unaware that SAPS had refused to co-operate. I was in turn surprised that he did not know of this development because we had reported it to the Minister when we briefed her on 25 June 2007, I had understood from Adv McCarthy that he had reported it to Rev Chikane in my absence from the office during July and early August 2008 and I had again reported it to the Minister on 11 September 2007.
168.2. The President asked me to suspend the execution of the warrants for two weeks to allow him to make the necessary arrangements for their execution. I said that two weeks was too long but that I would suspend them for one week. The President did not say anything to suggest that a week was not enough.
168.3. Rev Chikane asked me to prepare a full report for the President. I undertook to do so overnight.
169. I prepared a report for the President overnight. Adv McCarthy and I met him and the Rev Chikane again the following day, on Sunday 16 September 2007:
169.1. Annexure 268 is a copy of my report to the President. I gave a brief synopsis of the investigation and its outcome and concluded by saying that the execution of the warrants was imminent.
169.2. The President again suggested that I delay the execution of the warrants for two weeks. I repeated what I had said the day before, that two weeks were too long but that I would suspend the execution of the warrants for a week. The President asked me whether I knew "how angry the police are" and that some police officers were "prepared to defy any court order". I told the President that I failed to understand why that should be so because our investigation was directed at particular individuals and not against SAPS as an institution. The President did not take this issue any further.
169.3. The President turned to Rev Chikane and asked him to convene a meeting of the National Security Council to brief them on the matter. He asked me whether I would attend such a meeting. I agreed to do so. The Rev Chikane however never followed up on this suggestion. I do not know whether he convened the meeting of the NSC but I was never invited to such a meeting.
170. The President apparently addressed a letter to the Minister on Monday 17 September 2007. Annexure 273 is a copy of the letter. He asked her to obtain "the necessary information" from me "regarding the intended arrest and prosecution of the National Commissioner" to enable him "to take such informed decisions as may be necessary with regard to the National Commissioner". I am unable to explain this letter as it seems to have requested the very information I had given to the President and had discussed with him over the weekend.
171. On Tuesday 18 September 2007 I met with the Minister. She told me that she had received a letter from the President and had in turn prepared a letter to me which she handed to me. Annexure 275 is a copy of the letter. I only opened and read it on my return to my office. I was astonished by it because it was so completely out of keeping with the long history of interaction between the Minister and me in relation to the Selebi investigation and was also so completely out of character with our friendly interaction in the meeting that day.
172. The Minister's letter was an unconstitutional and unlawful attempt to interfere with my prosecutorial independence:
172.1. The Minister said in the opening sentence that she was "advised that you have taken legal steps to effect the arrest 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 eighteen months and had been told at the comprehensive briefing on 25 June 2007 that the DSO had finally decided to proceed with the search, arrest and prosecution of Mr Selebi.
172.2. 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.
172.3. She asserted that "I must be satisfied that indeed the public interest will be served should you go ahead with your intended cause of action." But that was a misconception. In terms of the Constitution and the NPA Act, I have to be satisfied of those matters and not the Minister.
172.4. The Minister concluded by instructing me 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."
172.5. 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.
172.6. 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.
173. I replied to the Minister's letter the following day, Wednesday 19 September 2007. Annexure 277 is a copy of my reply. I deliberately created an opportunity for the Minister to explain that she had not intended to issue an instruction. I made it clear however that, if the Minister's letter was meant as an instruction, then it was unlawful and I 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".
174. I realise today that it was the Minister's unlawful instruction on Wednesday 18 September 2007 and my refusal to comply with it on Thursday 19 September 2007, that were the turn of events which culminated in my suspension on Sunday 23 September 2007.
175. The Minister addressed a further letter to me on Wednesday 19 September 2007. Annexure 283 is a copy of the letter. She admitted that I had reported to her on the Selebi investigation from time to time but again insisted that she wanted all the evidence on which I had based the decision to search, arrest and prosecute Mr Selebi. She demanded all of this "today before close of business".
176. I worked late that night to prepare the report the Minister demanded. In the course of the evening, there was a telephone conversation between us in which the Minister had a severe emotional outburst.
177. I sent the report to the Minister under cover of a letter dated 19 September 2007 but it was in fact only delivered to her early the next morning, that is, on Thursday 20 September 2007. Annexure 285 is a copy of the letter and report. I concluded the letter by urging the Minister "that we meet as soon as possible to address any queries that you may have".
178. On Thursday 20 September 2007 I called Rev Chikane to arrange a meeting with the President. He told me the following day that the President would see me on Sunday 23 September 2007 at 19h45.
179. On Friday 21 September 2007 the Minister addressed a further letter to me. Annexure 295 is a copy of the letter. The Minister said that my report of 19 September 2007 contained "nothing substantially different to the information you provided in your earlier briefings." She added that I could see her on Sunday 23 September 2007 at 17h00, that is, shortly before my meeting with the President.
180. I met with the Minister on Sunday 23 September 2007 shortly after 17h00. The Minister asked me to resign because she said there had been a breakdown of trust between us. I was startled by this statement because we had always had a cordial relationship and there had never been any breakdown of trust between us. I declined her request and told her that both of us knew that there had not been a breakdown of trust between us. She did not dispute it and merely said "Vusi this is all about integrity and one day I will talk". I did not know what she meant by it.
181. I met with the President in the early evening of Sunday 23 September 2007. He knew that the Minister had asked me to resign and that I had declined. He told me that he would suspend me if I did not resign. I told him that I would still not do so. He then arranged for a letter of suspension to be prepared. While we waited, the President explained that he was suspending me because of their dissatisfaction with plea bargains and witness immunity arrangements that had been made. I assumed he had in mind plea bargains and witness immunity arrangements made in the course of the Selebi investigation in order to obtain evidence against him. The President did not mention any other reason for my suspension. When the letter of suspension had been prepared, he gave it to me and I left. Annexure 297 is a copy of the letter.
182. As appears from the letter, the President mentioned two reasons for my suspension:
182.1. The first was an accusation that I 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".
182.2. The President secondly said that the Minister had told him of "the breakdown of relations between your office and hers due to several incidents, such as your testimony to the Khampepe Commission of Inquiry".
183. The Sunday of my suspension was the last day of the week for which I had undertaken to the President the previous weekend, to suspend the execution of the Selebi warrants.
184. On Monday 24 September 2007 the Government issued a public statement that I had been suspended from office due to "an irretrievable breakdown in the working relationship between the Minister of Justice and Constitutional Development and the NDPP". Annexure 300 is a copy of the statement. It went on to say that,
"The President considers the relationship between the Minister and the NDPP central to the effective administration of justice and the smooth functioning of the National Prosecuting Authority. The relationship breakdown had adverse implications for the NPA and the functioning of the criminal justice system."
185. Reverend Chikane, also told the media on Monday 24 September 2007 that I had been suspended because "something had gone wrong in the exercise of (my) reporting to the Minister in terms of the Constitution". This appears from a news report published the following day, Annexure 301.
186. Dr Ginwala made two adverse findings about my conduct in relation to the Selebi investigation and the days before my suspension. I will deal with each of them in turn
Our failure to exhaust the co-operation route
187. Dr Ginwala criticised me for not exhausting the attempts at co-operation with SAPS to obtain the evidence the DSO required:
"Advocate Pikoli did not exhaust all the options presented by this intervention by the Presidency before applying for warrants of search and seizure of this evidence. Although he was frustrated by the SAPS in his efforts to obtain the information in their possession, and was entitled to seek the information through a warrant of search and seizure, he should have informed the DG:Presidency that his intervention had been unsuccessful before resorting to the courts and seeking warrants. This would also have afforded the DG:Presidency the opportunity to pursue other options to gain access to the information."[22]
188. I submit with respect that this criticism was unfounded for the reasons that follow.
189. The DSO had concluded at the time and I agreed, that there was no realistic prospect of ever getting the evidence they required from SAPS by way of co-operation. Adv Nel reported to us that Commissioner Williams had challenged him in their meetings to "go the legal route" by obtaining search warrants if we wanted the documents. It was indeed completely invidious to continue trying to persuade SAPS to hand over the documents while they reported to and acted under the command of Mr Selebi who was the suspect in the case.
190. Such duty as I have to keep the national executive informed, is in the first place a duty to report to the Minister. When the investigation team briefed her on 25 June 2007, we made it clear that the attempts at co-operation with SAPS had failed and that the DSO would now follow the legal route and seek warrants for Mr Selebi's arrest and for the searches of his home and offices. The Minister did not suggest that there was any reason not to do so and did not suggest in particular that we should first give the attempts at co-operation another chance.
191. Adv McCarthy reported to me on my return to the office on 6 August 2007, that he had reported to Rev Chikane that the attempts at co-operation with SAPS had failed. Annexure 266 at 267 is a copy of his report dated 5 August 2007. The very purpose of my request to Adv McCarthy to report this to Rev Chikane, was to make it clear that the co-operation route had failed and that we had come to a dead end. Adv McCarthy reported to me that Rev Chikane would arrange for me to see the President "next week".
192. I attempted to see the President from the date of my return to the office on 6 August 2007. I could not get an appointment to see him before 15 September 2007.
193. Subsequent events have demonstrated the validity of our assessment at the time, that there was no prospect of getting the evidence by co-operation with SAPS. Although I have not been in the office since my suspension, it is a matter of public record that the wrangle between the DSO investigators and SAPS has still not been resolved. The DSO recently resorted to subpoenaes on a number of senior SAPS officers for the evidence they require. The media reported as recently as 1 February 2009 that the SAPS officers concerned, were contesting the subpoenaes. I refer in this regard to a Sunday Times report of 1 February 2009, Annexure 301A. I do of course not have any personal knowledge of this ongoing wrangle. I merely make mention of it because it makes it so clear that we were correct when we concluded in the third quarter of 2007, that the DSO would get nowhere in their attempts to co-operate with SAPS and would have to resort to the legal route
The timing of my reports to the Minister and the President
194. Dr Ginwala found that I was remiss in informing the Minister and the President of the Selebi warrants only after they had been issued albeit before their execution:
"Advocate Pikoli was not able to explain why he did not inform the Minister or the President that he had come to a decision to obtain the warrant of arrest of the National Commissioner of Police. Nor did he provide any reason for not informing the Minister on 11 September 2007 that the DSO was applying for the warrants of search and seizure against the National Commissioner of Police three days hence. In his evidence Advocate Pikoli merely said that it was his ‘call' not to inform the Minister.
It is clear that in the circumstances of the impending prosecution of a state official as senior as the National Commissioner of Police, Advocate Pikoli was obliged to inform the Minister at every step of the way. It was necessary that he do so in order to enable the Minister to exercise her final responsibility, namely to report to the President and to Cabinet on such matters especially if they may affect national security. This duty would specifically include informing the Minister of the DSO's intention to apply for warrants of arrest and search and seizure against the National Commissioner of Police.
It is no excuse for Advocate Pikoli to say that in his view the warrant of arrest would not have been executed before his say-so and until after he had informed the President".[23]
195. I submit with respect that this criticism is unfounded for the reasons that follow.
196. We made it clear to the Minister and the President from about March 2007. that the DSO will apply for warrants to search Mr Selebi's home and office if they did not obtain the evidence they required from SAPS. My report to the President of 7 May 2007 Annexure 252, said that it was an appeal to the President for help as a last resort.
197. When the investigation team briefed the Minister on 25 June 2007, we made it clear to her that the DSO had decided to go ahead with the arrest of Mr Selebi. I subsequently reminded the Minister of this in my letter to her on Wednesday 19 September 2007, Annexure 277 at 279 and she has never disputed its accuracy:
"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 cause of action. As a matter of fact, I requested that you seek an audience with the President to appraise him of the intended cause 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 cause of action."
198. Adv McCarthy reported to me on my return to the office on 6 August 2007, that he had not been able to see the President but that he had reported to Rev Chikane that the DSO's attempts to obtain the necessary evidence from SAPS had failed.[24] I assumed as I submit with respect I was entitled to do, that the Rev Chikane would pass this information on to the President who would appreciate in the light of our previous reports, that the DSO would now resort to the legal route of arrest, search and seizure.
199. I attempted to see the President from the time of my return to the office on 5 August 2007 to tell him of our decision to go ahead with the Selebi arrest and searches. The earliest appointment I could obtain to see the President was on Saturday 15 September 2007, that is, after the warrants had been issued.
200. I submit with respect that there was in any event no reason for me to delay the applications for the warrants until the Minister and the President had been informed of our intention to apply for them. I made it clear to the investigation team that they should hold back the execution of the warrants until I had had an opportunity to inform the President of them. I remained in complete control of the execution of the warrants. I could decide whether to proceed with their execution and, if so, when and how it should be done. It made no difference at all whether I told the Minister and the President about them before or after they had been formally issued.
201. Neither the Minister nor the President raised any complaint when I told them of the warrants. Neither of them suggested that I should have told them earlier. The complaint that I should have done so, was a contrived afterthought.
Conclusions
202. I submit with respect that Dr Ginwala's adverse findings were wrong.
203. I submit in any event that, even if they were correctly made, they in any event did not in any way impugn my fitness for office.
My "two week-one week" conversations with the President
The Ginwala Report
204. Dr Ginwala dealt with this aspect in her report, Annexure 306, at,
- 322 and 323 in paragraphs 16 and 17;
- 496 and 497 in paragraphs 301 and 302 and
- 517 and 518 in paragraphs 352 to 357.
205. As appears from these paragraphs of Dr Ginwala's Report, she was critical of my response to the President's request on Saturday 15 September 2007 which he repeated on Sunday 16 September 2007, that I suspend the execution of the Selebi warrants for two weeks. She made it clear however that she could not make any adverse findings against me on this score because,
- Government had never raised this complaint, and
- she did not know whether my conduct had in fact imperilled national security.
The President's understanding of Dr Ginwala's criticism
206. As appears from page 5 of President Motlanthe's letter of 8 December 2008, Annexure 563 at 567, the factor that apparently persuaded him to remove me from office, was his understanding of the following conclusion in Annexure 306 at 519 in paragraph 357 of Dr Ginwala's Report:
"Had these facts been presented as the reason for the suspension, when the conduct would have held a real risk of undermining national security, I would not have hesitated to find the reason to be legitimate. However, these were not the reasons put forward by Government."
207. The President correctly noted in his letter, that "the facts" on which Dr Ginwala based this conclusion, were those described in Annexure 306 from 517 to 519 in paragraphs 352 to 356 of her report. They were her comments on my "two week-one week" conversations with the President.
208. The President's understanding of Dr Ginwala's conclusion is set out on page 5 of his letter Annexure 563 at 567:
208.1. The President interpreted Dr Ginwala's conclusion to mean, "that there was a real and legitimate basis for Advocate Pikoli to be suspended (albeit that this was not raised as a ground at the time)".
208.2. The President then inferred from this understanding of Dr Ginwala's conclusion,
- that "by necessary implication his conduct in relation to, in particular, national security issues, indicated a clear lack of insight" and
- that "by further necessary implication", this lack of insight "rendered him a person not fit and proper to hold the position of National Director of Public Prosecutions".
209. I submit with respect for the reasons that follow,
209.1. that the President misconstrued Dr Ginwala's conclusion in two fundamental respects;
209.2. that the President's inferential reasoning based on Dr Ginwala's conclusion, was fundamentally flawed, and
209.3. that the President's ultimate conclusion was in any event wrong, whether it was justified by Dr Ginwala's conclusion or not.
The President's first misunderstanding
210. As appears from the President's letter, he understood Dr Ginwala's conclusion to mean, "that she had concluded that there was a real and legitimate basis for Advocate Pikoli to be suspended".
211. But Dr Ginwala did not come to any such conclusion. She merely said that she would have come to such a conclusion "when the conduct would have held a real risk of undermining national security".
212. She clearly meant by this statement, that she would have come to such a conclusion, only "if" my conduct had created a real risk of undermining national security. She did not find that my conduct had in fact done so. She made this clear in the body of her report (Annexure 306 at 497 at the end of paragraph 302):
"I do not have access to all the information available to the President and am unable to assess the potential threat to stability and national security if Advocate Pikoli had continued to pursue his course of action. Nor would it be appropriate for me to try and do so. It had to be a presidential decision."
The President's second misunderstanding
213. The President construed Dr Ginwala's conclusion to mean that she did not find "that there was a real and legitimate basis for Advocate Pikoli to be suspended", only because this complaint had not been raised as a ground for my suspension "at the time", that is, at the time of my suspension.
214. The President in other words understood Dr Ginwala to say that she did not make an adverse finding against me only because President Mbeki did not raise it as a ground for my suspension "at that time", that is, when he suspended me on Sunday 23 September 2007.
215. The President confirmed this understanding of Dr Ginwala's conclusion in an interview with the Mail and Guardian as appears from their report of the interview published on 9 January 2009, Annexure 571. According to the report, President Motlanthe inter alia said the following:
"The point is that the Terms of Reference of the Frene Ginwala Commission were to establish if Pikoli was fit to hold office, but she makes a finding on the basis of the original letter of suspension, saying that the Government did not make a strong enough case for his suspension. However, in the course of her own Enquiry, she comes to the view that, had the Government based suspension on the issue of his understanding of the broader workings of the NDPP within the framework of the other elements of state and national security, she would have found those reasons to have been valid."
216. But this was also a fundamental misunderstanding. Dr Ginwala made it clear that there were two reasons why she did not find that my suspension was justified:
216.1. The first was the one I have already mentioned, that she could not find and accordingly did not find, that my conduct had in fact jeopardised national security.
216.2. The second was not merely that this complaint had not been raised at the time of my suspension, but that it had never formed part of Government's case against me at all. Dr Ginwala made this clear in her report (Annexure 306 at 323) in paragraph 17 where she recorded that this complaint was "not among the reasons put forward by Government before this Enquiry".
217. Dr Ginwala was clearly correct. She could never make an adverse finding against me on this score because it had never been part of Government's case against me. The fact that Government had never raised this complaint at any time, precluded an adverse finding for two reasons:
217.1. The first was that this complaint was never part of the case I was called upon to meet. I did not take advice on it, did not prepare for it and did not adduce evidence on it. Dr Ginwala accordingly could not make an adverse finding on this complaint because there was never any proper enquiry into it.
217.2. But the second reason is perhaps even more compelling. It is that the complaint cannot be taken seriously. If there was any substance to it, Government would have raised it from the outset. The fact that they never did so, can only mean that they never considered it to be a legitimate complaint. It was a contrived afterthought when all else had failed.
218. Government's failure to raise this complaint was inexplicable on any other basis. The occasions on which they would have raised it if there were any substance to it, included the following:
218.1. If President Mbeki thought that he could not make the necessary arrangements in a week and if there was a risk that national security would be compromised, he would have discussed it with me in our meetings on the weekend of 15 and 16 September 2007. It would have been irresponsible for him not to do so. But he never did. His failure to do so made it clear that, although he would have preferred two weeks, a week would do. If that was not the case, he would have said so.
218.2. We concluded our discussions that weekend, on the understanding that Rev Chikane would call a meeting of the NSC and that I would be invited to address them. It would have been a further occasion to address any security concerns and to extend the week if it was necessary to do so in the interests of national security. But nothing came of this arrangement. I have little doubt that it would have been implemented if the President thought that the imminent arrest and prosecution of Mr Selebi posed a threat to national security.
218.3. If the President believed that my refusal to afford him two weeks posed a risk to national security, he would have raised the matter in his letter to the Minister on Monday 17 September 2007, Annexure 273. Instead he merely sought information "regarding the intended arrest and prosecution of the National Commissioner" to "enable me to take such informed decisions as may be necessary with regard to the National Commissioner".
218.4. In her letter to me of Tuesday 18 September 2007, the Minister ordered me not to proceed with the arrest and prosecution of Mr Selebi until she had satisfied herself that there was sufficient evidence to do so. If she had any reservations about the security risks created by the impending arrest and prosecution, she would have said so in this letter. It would have been a far more legitimate basis to seek a delay of the arrest and prosecution than her insistence that she should first satisfy herself of the justification for it.
218.5. If the President was concerned about any risk to national security, he would have raised it with the Minister. She would in turn have raised it with me, particularly after I made it clear in my letter to her on 19 September 2007 Annexure 277 at 278, that I was acutely aware of the need for the President to create an enabling environment for the execution of the warrants:
"A possible investigation and arrest of the National Commissioner of SAPS would clearly affect the national interest and it was vital that the President be placed in a position to take whatever steps necessary to protect the national interest or avoid embarrassment to the country. The outcome of the investigation may necessitate disciplinary or other action against the National Commissioner and it would be important for the President to know the nature of the allegations."
218.6. When the Minister asked me to resign on Sunday afternoon 23 September 2007, she did not suggest that it had anything to do with my failure to allow for the need to create an enabling environment. She would clearly have done so if it was in fact the reason for her request. She would indeed, if that were so, have tried to persuade me to allow more time for an enabling environment to be created before calling on me to resign as a last resort.
218.7. When the President suspended me, he did not say or suggest in our meeting or in his letter of suspension Annexure 297, that it had anything to do with my failure to accommodate the need for an enabling environment.
218.8. Government's subsequent press statements of my suspension, gave a false reason for it and made no mention of my failure to allow the President more time to create an enabling environment.
218.9. Government's founding statement in which they formulated their complaints against me in the Ginwala Enquiry, did not make any complaint on this score.
218.10. Rev Chikane made two affidavits in support of Government's case against me in the Ginwala Enquiry but made no mention of this complaint at all.
218.11. Government did not raise this complaint in their original heads of argument based on the evidence filed on paper.
218.12. When I gave evidence at the Ginwala Enquiry, senior counsel for the Government put it to me in cross-examination that my evidence of my "two week-one week" conversations with the President was a fabrication:
"Counsel: Oh no Mr Pikoli we are saying there was no mention of two weeks or one week in that conversation, that's the dispute. And we are saying to you this is a recent fabrication that surfaced when you started giving your evidence-in-chief."[25]
I do not know on whose instruction this version was put to me but it could only have come from President Mbeki or Rev Chikane.
218.13. In their closing submissions in the Ginwala Enquiry, the Government persisted in their contention that my evidence of the "two weeks-one week" conversations with the President was a fabrication.
219. I accordingly submit that President Motlanthe was fundamentally mistaken in his understanding that Dr Ginwala had refrained from making an adverse finding against me only because this complaint had not been raised at the time of my suspension.
The President's inferential reasoning was flawed
220. I submit that, even if the President's understanding of Dr Ginwala's conclusion had been correct, his inferential reasoning based on it was in any event fundamentally flawed. Even if it could be said that I was wrong not simply to accede to President Mbeki's request for a delay of two weeks, it could in any event not justify President Motlanthe's inferential leaps by which he concluded,
- that "by necessary implication his conduct in relation to, in particular, national security issues, indicated a clear lack of insight" and
- that "by further necessary implication", this lack of insight "rendered him a person not fit and proper to hold the position of National Director of Public Prosecutions".
221. These two general and far-reaching inferences were simply not justified on the basis of the President's own understanding that I had been wrong in not immediately acceding without question, to President Mbeki's request for a delay of two weeks.
The President's conclusion was in any event wrong
222. The President's ultimate conclusion was that my conduct, particularly in relation to national security issues, "indicated a clear lack of insight which ... rendered him a person not fit and proper to hold the position of National Director of Public Prosecutions". I have already submitted that this conclusion was not justified by the Ginwala Report on which it was based. But even if it was, I submit that it was in any event wrong for the reasons that follow.
223. The DSO was battling since February 2007 to obtain information from SAPS. Consequently the investigations of the DSO were delayed and this impacted on other criminal cases (including the Paparas case which involved the prosecution of a drug syndicate) and which was already before the courts. I was therefore legitimately concerned about delaying the execution of the warrants for a further week.
224. I was at all times acutely aware of the far-reaching implications including the implications of national security, of the DSO's planned arrest of Mr Selebi and searches of his home and offices. I made that clear in my letter to the Minister of 19 September 2007, Annexure 277, in a passage I have already quoted.
225. In my meetings with the President on the weekend of 15 and 16 September 2007, he never said or even suggested that the necessary arrangements could not be made within a week. I was fully entitled to understand the President's attitude to be that he would prefer to have two weeks but could make the necessary arrangement within a week if needs be. If it were otherwise, the President would have said so and would have explained why a week was not enough.
226. If the problem was that the President was unable to make the necessary arrangements within a week, then he would at least have raised the matter again towards the end of the week, either via the Minister or in our meeting on Sunday evening 23 September 2007. He suspended me instead without mentioning any complaint or difficulty about my unwillingness to delay the matter for two weeks. It was not as if he simply did not discuss the reasons for my suspension with me. He told me why I was being suspended and it had nothing whatever to do with the "two week-one week" discussion.
227. The fact of the matter is that I have had greater exposure to and a better understanding of national security issues than an NDPP would ordinarily have. I do not wish to blow my own trumpet but I do wish to mention the following in this regard:
227.1. I spent some time in exile as a member of Umkhonto we Sizwe. I received military training in this capacity. It included training in regard to security matters.
227.2. After my return to South Africa, I was appointed Special Adviser to the then Minister of Justice Mr Dullah Omar. He served as Minister of two portfolios including Intelligence.
227.3. In about 1996 I was asked to chair a ministerial inquiry into the transformation of the Civilian Intelligence Services. This investigation focused on the amalgamation of the existing national intelligence structures with those of the liberation movements and the old homelands. The investigation team also had to make recommendations regarding the transformation of the Civilian Intelligence structures in line with the Constitution. It took a little more than a year and the report was completed and submitted to Minister Omar in 1997. This investigation gave me wide exposure to intelligence structures and exactly how they operated.
227.4. In 1998 I was appointed Deputy Chair of another ministerial investigation into the transformation of Defence Intelligence. This investigation focused on the integration of the intelligence services of the previous defence force and the liberation movements. It also enquired into the method of operation of these intelligence services and made recommendations which brought the intelligence services in line with the new constitutional dispensation and modern thinking on intelligence matters.
227.5. While I served as the DG of Justice in 2002, I participated in discussions in regard to the national security strategy towards the formulation of a policy document designed to create a comprehensive integrated national security strategy.
227.6. While I was the DG of Justice, I co-chaired the Justice, Crime Prevention and Security Cluster. National security issues were often discussed at the meetings of this cluster.
227.7. While I was the DG of Justice, I was also a member of the National Security Council. It met regularly and dealt with issues that could potentially affect the national security of our country.
228. I submit with respect that I am more experienced in and have a greater understanding of national security issues than is required of an NDPP. The President's conclusion to the contrary is with respect quite wrong.
229. I submit with respect that I am a fit and proper person to hold the office of NDPP. The President's conclusion to the contrary was wrong. My dismissal was accordingly not authorised under s 12(6)(a)(iv) of the NPA Act. It thus violated the principle of legality.
THE PRESIDENT'S IRREGULARITIES
230. I submit with respect that the President's decision to remove me from office was in any event flawed by material, procedural and substantive irregularities which rendered it unlawful and invalid.
His approach to the Ginwala Report
231. After Dr Ginwala had rendered her report, the President invited me to make submissions to him on her adverse findings against me. He did so in his letter of 11 November 2007, Annexure 524. I made extensive submissions to the President on Dr Ginwala's Report including and in particular on her adverse findings. Annexure 526 is a copy of my submissions. I submitted that the adverse findings were wrong and in any event did not justify any suggestion that I was no longer fit for office.
232. The President said in his letter of dismissal of 8 December 2008 Annexure 563, that he had carefully considered my submissions. He made it clear in Annexure 563 at 565 in paragraphs 10 to 12 however, that he had not been open to any suggestion that the Ginwala Report might have been wrong in any way:
232.1. He recorded in paragraph 10 that I had called upon him to revisit and overturn the adverse findings made against me in the Ginwala Report.
232.2. His response in paragraph 11 of his letter (Annexure 566), was to say that he was "required" to base his decision on the Ginwala Report:
"However, it seems to me that I am required to approach the matter on the basis of the findings reached by an independent enquiry and which has resulted in a detailed and motivated report."
232.3. He repeated in paragraph 12 that he was "obliged" to base his decision on the Ginwala Report.
233. The President erred in this regard. It is clear from s 12(6)(a) of the NPA Act that an enquiry in terms of that section, is merely a tool available to the President to use in whatever way he chooses. President Mbeki chose in this case, to appoint Dr Ginwala, a senior and loyal member of the party of which he was the president, to undertake his enquiry for him on his terms. While I do not impugn Dr Ginwala's integrity in any way, her enquiry was avowedly merely a tool the President employed as he saw fit. There was nothing "independent" or "objective" about it.
234. The findings and recommendations of such an enquiry can never be binding on either the President or the NDPP. President Motlanthe was obliged as the ultimate decision-maker, to afford me a hearing on the adverse findings against me. He was obliged to reconsider the adverse findings in the light of my submissions and was obliged to do so with an open mind.
235. The President has made it clear instead, that the hearing he afforded me was no more than a charade. He paid lip-service to my right to be heard. Although he invited representations and said that he had carefully considered them, he did so on the basis that he was "required" and "obliged" to take his decision on the basis of the Ginwala Report. It means that his mind was closed to any suggestion that Dr Ginwala might have been wrong. My submissions on Dr Ginwala's adverse findings were an exercise in futility.
236. I accordingly submit that the President's decision to dismiss me was taken in a procedurally unfair manner. He failed to afford me a fair hearing. He invited me to make submissions on Dr Ginwala's adverse findings but then did not consider them with an open mind as he was obliged to do.
237. It rendered his decision reviewable in terms of the following provisions of PAJA:
237.1. Section 6(2)(c) in that his decision was procedurally unfair.
237.2. Section 6(2)(d) in that his decision was materially influenced by his mistaken perception that he was "required" and "obliged" by law to base it on the Ginwala Report.
The criticism that swayed the President
238. As appears from the President's letter of dismissal of 8 December 2008 and particularly Annexure 567, Dr Ginwala's criticism of my "two week-one week" conversations with President Mbeki on the weekend of 15 and 16 September 2007, was the decisive factor or at least a material factor in his decision to dismiss me.
239. I have already discussed this criticism in the chapter on "My Fitness For Office" in the section on "My ‘two week-one week' conversations with the President". That discussion shows,
- that Dr Ginwala's criticism was unfounded;
- that the President misunderstood Dr Ginwala's criticism in two fundamental respects, and
- that the President's inferential reasoning based on Dr Ginwala's criticism was fundamentally flawed.
240. These flaws rendered the President's decision to dismiss me reviewable in terms of the following provisions of PAJA:
240.1. Section 6(2)(c) in that the President's decision was procedurally unfair. The decisive or a material factor, was Dr Ginwala's criticism on an issue on which I was never afforded a fair hearing or indeed any hearing at all. Dr Ginwala did not make a finding against me on this issue precisely because it had never formed part of the case against me. The President on the other hand, regarded himself as bound by her report including her criticism on this issue. Between the two of them I have been condemned on an issue on which I have never received any hearing at all and in any event not one that was fair.
240.2. Section 6(2)(e)(iii) because the President took irrelevant considerations into account and ignored relevant ones as a result of his misunderstanding of Dr Ginwala's criticism and his mistaken belief that he was bound by Dr Ginwala's adverse findings made against me.
240.3. Section 6(2)(e)(vi) because the President's decision was arbitrary or capricious as a result of his mistaken understanding of Dr Ginwala's criticism.
240.4. Section 6(2)(f)(ii)(cc) in that the President's decision was not rationally connected to the information before him which included both Dr Ginwala's Report and my submissions on it.
240.5. Section 6(2)(h) in that the President's misunderstanding of Dr Ginwala's Report and his unjustified inferential reasoning based on it, rendered his conclusion unreasonable.
The President's ultimate conclusion
241. I have already submitted in the chapter on "My Fitness For Office" that I am in fact fit for office. I submit that the President's conclusion to the contrary is in any event reviewable under the following provisions of PAJA:
241.1. Section 6(2)(h) in that it is unreasonable.
241.2. Section 6(2)(i) in that it is otherwise unconstitutional or unlawful because it violates the guarantee of prosecutorial independence implicit in s 197(4) of the Constitution.
The President's ulterior purpose
242. I suspect and submit for the reasons that follow, that President Motlanthe acted with an ulterior purpose when he dismissed me. I do not have any direct evidence of his ulterior purpose and I cannot say with confidence exactly what it was. I submit however that the following circumstantial evidence gives rise to an overwhelming inference that President Motlanthe did not act in good faith.
243. The run-up to my suspension by President Mbeki, made it clear that he suspended me to stop my intended arrest and prosecution of Mr Selebi. I submit that this inference is irresistible.
244. It is reinforced by the fact that Government has consistently advanced false and spurious reasons for my dismissal:
244.1. The Minister first tried to stop the impending arrest and prosecution of Mr Selebi when she instructed me in her letter of Tuesday 18 September 2007 Annexure 275 at 276, not to proceed with the arrest and prosecution until she had satisfied herself that there was enough evidence to do so. It was a blatant and grossly unlawful attempt to stop the arrest and prosecution of Mr Selebi.
244.2. When it did not work, the Minister asked me to resign on Sunday 23 September 2007. The reason she advanced for doing so, was spurious and she knew it. Our relationship had in fact not broken down and when I told her that both of us knew that that was so, she did not deny it. Government did not adduce any evidence in support of the breakdown theory in the Ginwala Enquiry and made no attempt to justify it.
244.3. When I would not resign, President Mbeki suspended me on Sunday evening 23 September 2007. The reasons he advanced for it, both in our conversation that evening and in his letter of suspension Annexure 297, were quite spurious. The first was that I had allegedly 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". Government clearly arrogated to itself, a discretionary function the Constitution and the NPA Act entrusted to me. The second reason was again the so-called breakdown of relations between me and the Minister. It was not only spurious but said to have been due to "several incidents, such as your testimony to the Khampepe Commission". The notion that I was being dismissed on the eve of the arrest and prosecution of Mr Selebi because of evidence I had given 18 months earlier about which the Minister had never complained since then, was so absurd as to be laughable. Government made no attempt to justify it in the Ginwala Enquiry.
244.4. In the days following my suspension, Government including Rev Chikane, told the public that I had been suspended because of the breakdown of my relationship with the Minister. But that reason was false and they knew it.
244.5. In his oral evidence in the Ginwala Enquiry, Rev Chikane for the first time came up with a new explanation. He said I was dismissed because of the security risks inherent in the planned searches of Mr Selebi's offices. I accept that this explanation is half-true insofar as it at least concedes that I was suspended to stop the arrest and prosecution of Mr Selebi. But the suggestion that it was done for security reasons and not simply to protect a friend, are with respect quite unfounded. I have already dealt with it at length. Rev Chikane never gave any plausible explanation for his and Government's failure to raise this explanation at any time, not even in the two affidavits he had made in the Ginwala Enquiry.
245. President Motlanthe in turn says that he decided to dismiss me, not for any of the reasons for which I had been suspended, but purely on the basis of the Ginwala Report. But the thrust and bottomline of the Ginwala Report was that I was fit for office and should be restored to it. President Motlanthe purported to justify his decision to the contrary, principally on the basis of Dr Ginwala's criticism of my "two week-one week" conversations with President Mbeki. But not only was her criticism unfounded, the President moreover fundamentally misconstrued it and then used it as a springboard from which he made unwarranted inferential leaps to come to his conclusion that I was not fit for office. I submit that this contorted reasoning to conclude that I should be removed from office in the face of Dr Ginwala's recommendation the other way, smacks of bad faith and an ulterior purpose.
246. I have no evidence of President Motlanthe's actual motive. There are however the following matters of public record which would explain his conduct:
246.1. President Motlanthe acts under the instructions of the leadership of his party, the ANC.
246.2. The President of the ANC is Mr Jacob Zuma. There are pending criminal proceedings against him on serious charges which include corruption, fraud and racketeering. I took the initial decision to prosecute him.
246.3. Mr Zuma is his party's candidate for president after the general election due to take place in two or three months.
246.4. Mr Zuma and his party regard the pending proceedings against him as an impediment in the way of his presidential aspirations which they want to clear out of the way if possible at all. They have for instance said that they will make representations to the NPA to persuade the NDPP to withdraw the charges against Mr Zuma
247. The overwhelming inference is that President Motlanthe and the leadership of his party under whose direction he acts, would prefer to deal with an NDPP of their own choosing. I assume they hope he or she would be more malleable than I am.
248. I accordingly submit that the President's decision is also reviewable in terms of s 6(2)(e)(ii) of PAJA in that it was taken for an ulterior purpose or motive.
249. I submit for these reasons that the President's decision to remove me from office should in any event be reviewed and set aside.
FEBRUARY 17 2009
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Footnotes
[1] Ginwala report Annexure 306 at 523 para I
[2] Ginwala report Annexure 306 at 378 para 95
[3] Ginwala report Annexure 306 at 486 para 284
[4] Ginwala report Annexure 306 at 494 para 296
[5] Ginwala report Annexure 306 at 449 para 222
[6] Ginwala report Annexure 306 at 452 para 225
[7] Ginwala report Annexure 306 at 457 para 231
[8] Ginwala Report Annexure 306 at 427 para 185
[9] Ginwala Report Annexure 306 at 428 para 186
[10] Ginwala Report Annexure 306 at 507 para 328
[11] Ginwala Report Annexure 306 at 436 para 196
[12] Ginwala Report Annexure 306 at 437para 198
[13] Ginwala Report Annexure 306 at 436 para 196 and 438 para 198
[14] Ginwala Report Annexure 306 at 438 para 198
[15] Ginwala Report Annexure 306 at 420 para 169
[16] Ginwala Report Annexure 306 at 420 and 421 paras 169 and 170
[17] Memorandum 7 May 2007 Annexure X 252 at 253
[18] Memorandum 7 May 2007 Annexure X 252 at 253
[19] Memorandum 7 May 2007 Annexure X 252 at 254 to 264 paras 1 to 30
[20] Memorandum 7 May 2007 Annexure X 252 at 264 para 31
[21] Memorandum 7 May 2007 Annexure X 252 at 265 para 34
[22] Ginwala Report Annexure 306 at 512 and 513 para 343
[23] Ginwala Report Annexure 306 at 494 and 495 paras 298 to 300 and at 513 and 514 paras 344 to 345
[24] See Adv McCarthy's memorandum of 5 August 2007 Annexure 266 at 267 para 4
[25] Ginwala Evidence p 881 lines 1 to 5
