THE NORTH GAUTENG HIGH COURT, PRETORIA
Case 8550/09
In the matter between:
PIKOLI, VUSUMZI PATRICK - Applicant
and
THE PRESIDENT - First Respondent
THE SPEAKER OF THE NATIONAL ASSEMBLY -Second Respondent
THE CHAIR OF THE NATIONAL COUNCIL OF PROVINCES - Third Respondent
NOTICE OF URGENT APPLICATION
Please take notice that the applicant will apply to this court on Tuesday 4 August 2009 at 10h00 or as soon thereafter as counsel may be heard, for an order in the following terms:
1. It is declared that this application is urgent and, insofar as the applicant might not have complied with the rules of this court, his failure to do so is condoned.
2. The first respondent is interdicted from making a permanent appointment of a new National Director of Public Prosecutions,
- until the main application in case 8550/09 has been finally determined, or
- alternatively, until this court has given judgment in the main application in case 8550/09.
3. The first respondent and any other respondent who might oppose this application, are ordered jointly and severally to pay the applicant's costs.
4. The applicant is afforded further or alternative relief.
The accompanying affidavit of the applicant and all the evidence filed in the main application in case 8550/09 will be used in support of this application.
If you intend opposing this application, you must notify the applicant's attorneys in writing and file your answering affidavits, if any, by not later than 12h00 on Tuesday, 29 July 2009.
Kindly place the matter on the roll for hearing accordingly.
Dated at Sandton on this the day of July 2009
To:
The Registrar of the High Court
Pretoria
And to:
State Attorney
Attorneys for respondents
And to:
Webber Wentzel Attorneys
Attorneys for Freedom under Law
And to:
J H Van der Merwe Incorporated
Attorneys for the Inkatha Freedom party
THE NORTH GAUTENG HIGH COURT, PRETORIA
Case 8550/09
In the matter between:
PIKOLI, VUSUMZI PATRICK - Applicant
and
THE PRESIDENT - First Respondent
THE SPEAKER OF THE NATIONAL ASSEMBLY - Second Respondent
THE CHAIR OF THE NATIONAL COUNCIL OF PROVINCES - Third Respondent
FOUNDING AFFIDAVIT IN URGENT APPLICATION
I, the undersigned,
VUSUMZI PATRICK PIKOLI
make the following statement under oath.
THE PARTIES
5. I am the applicant in this application and in the main application in case 8550/09 which is pending in this court. I am an advocate of this court. I live at Stand 93, Westlake Country and Safari Estate, Broederstroom, North West. I have personal knowledge of the facts to which I depose in this affidavit except where it is apparent where I do not. The submissions of law I make in this affidavit are made on the advice of my lawyers.
6. The first respondent in this application and in the main application, is the President of the Republic of South Africa of care of The State Attorney, 8th Floor, Bothongo Heights, 167 Andries Street, Pretoria, Gauteng. The current President is President Zuma. His predecessors are President Motlanthe and President Mbeki. I will refer to them by name but, where I do not, it will be apparent from the context which of them I have in mind.
7. The second respondent in the main application 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 in the main application is the Chair of the National Council of Provinces of care of The State Attorney, 3rd Floor, Liberty Life Centre, 22 Long Street, Cape Town.
9. I do not seek any relief against the second and third respondents in this application. I cite them only because they are parties to the main application. I deny that they have standing to oppose this application. If they should do so however, I will seek orders for costs against them.
10. Two parties have applied to be admitted as amici curiae in the main application. I will accordingly cause notice of this application to be given to them but I do not cite them as parties to this application because they have not yet been admitted as amici curiae. They are the following entities:
10.1. Freedom under Law, an association not for gain incorporated in terms of s 21 of the Companies Act 61 of 1973 of care of Friedland & Hart, 4-301 Monument Office Park, 79 Steenbok Avenue, Monument Park, Pretoria. According to its deponent Anglican Archbishop Emeritus Desmond Tutu, Freedom under Law seeks to promote democracy under law and to advance the understanding of and respect for the rule of law and the principle of legality.
10.2. The Inkatha Freedom Party of care of J H van der Merwe Incorporated, 870 Rubenstein Drive, Moreletta Park, Pretoria. It is a political party.
THE PURPOSE OF THIS APPLICATION
11. The President appointed me the National Director of Public Prosecutions in terms of s 179(1)(a) of the Constitution and ss 10 and 12(1) of the National Prosecuting Authority Act 32 of 1998 for a period of ten years from February 2005. My term of office only expires in January 2015.
12. The President purported to remove me from office on 8 December 2008 in terms of s 12(6)(a)(iv) of the NPA Act.
13. 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 office. My purported dismissal from office accordingly became final on 17 February 2009.
14. I launched the main application the next day, that is on 18 February 2009, for my dismissal from office to be reviewed and set aside.
15. I also asked in the main application for an urgent interdict restraining the President pending the final determination of the main application, from making a permanent appointment of a new NDPP. I motivated my request for such an interdict in paragraphs 40.1 and 40.2 of my founding affidavit as follows:
"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.
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."
16. I have since then not brought the main application before this court for the determination of my application for an urgent interim interdict, because my fears that the President might attempt to appoint a new permanent NDPP have been allayed by subsequent events:
16.1. The State Attorney who acts for the President in the main application, said in a letter to my attorney on 19 February 2009,
- that the President "is currently taking advice with regard to the possible appointment of a new Director of Public Prosecutions" and that "no final decision in this regard will be made before the end of next week, i.e. Friday the 27th February 2008" (clearly intended to mean 27th February 2009);
- that "prior notice will be given to you should the President ultimately be of the view that a new Director of Public Prosecutions should be appointed", and
- that it was "accordingly unnecessary, at present, for any urgent proceedings to be launched".
16.2. The clear message conveyed by the letter, was that the President would finally decide whether to make a new appointment by Friday 27 February 2009 and, should he decide to do so, he would give me prior notice to allow me to launch urgent proceedings to forestall it. The President did not give me any such notice before 27 February 2008 or thereafter.
16.3. The President's answering affidavits were filed at what appeared to be a leisurely pace. They were filed in dribs and drabs. The last affidavit was only filed on 13 May 2009, almost three months after the main application had been launched.
16.4. In paragraphs 48 and 49 of his answer, the President agreed that the main application was urgent and "should be resolved as soon as possible". He did not address my submission that, if this court should uphold the main application, its implication would be that the President does not have the power to appoint a new permanent NDPP.
16.5. The media reported on 31 May 2009 that the Secretary-General of the ANC and a close confidante of the President, Mr Gwede Mantashe, had said that it would be "reckless" to appoint a new NDPP while the main application was still pending. The President did not publicly repudiate or correct this statement.
16.6. My reply in the main application was filed on 11 June 2009. My lawyers thereafter engaged with the President's lawyers to arrange a date for the hearing of the main application. In these engagements, the President's lawyers again did not display any sense of urgency to have the main application finalised.
17. The main application is ripe for hearing. By agreement between the parties, my attorneys made representations to the Judge-President of this court on 9 July 2009 for a special allocation of dates for the hearing of the main application. They indicated that my counsel were available on any dates from 9 to 22 October 2009, from 2 to 6 November 2009 and from 16 November to 2 December 2009 but that the President's counsel had difficulties with the earlier dates and would prefer the matter to be heard during the period from 16 November to 2 December 2009.
18. On 15 July 2009 and quite out of the blue, my attorneys received a letter from the State Attorney which enclosed a letter from the President, informing me that the President now intends to appoint a new NDPP. It has thus become necessary for me to move urgently for an interim interdict to forestall such an appointment.
19. As is apparent from the summary of the purpose of this application, it is entirely incidental to the main application. I rely on all the evidence and on the causes of action I advanced in the main application. It would however be pointless to duplicate the main application in this application. I accordingly ask that it be read as incorporated in this application.
MY CAUSES OF ACTION
20. My causes of action in the main application are three-fold:
20.1. The first is that in terms of s 12(6)(a)(iv) of the NPA Act, which is the provision under which the President purported to remove me from office, he only had the power to do so if I was "no longer a fit and proper person to hold the office concerned", that is, the office of NDPP. I am and have at all times been fit to hold the office of NDPP. The evidence on which I make this submission is set out in the main application. My purported dismissal from office was accordingly ultra vires and in violation of the constitutional principle of legality.
20.2. The second is that the President committed a series of irregularities in making his decision to remove me from office. He misunderstood and misconstrued the report on which he based his decision and acted with an ulterior purpose. It rendered my removal from office invalid in terms of s 33(1) of the Constitution read with the Promotion of Administrative Justice Act 4 of 2000.
20.3. The third is that my purported removal from office was in violation of the constitutional guarantee of independence.[1]
21. For the reasons that follow, I submit that it would indeed in the words of the Secretary-General of the ANC, be "reckless", contrary to the public interest and in violation of my rights, for the President to proceed with the appointment of a new permanent NDPP while the main application is still pending before this court.
22. I submit with respect on the basis of the evidence in the main application, that there is every likelihood that my causes of action will be upheld. They render my dismissal from office unconstitutional and invalid. The court will be obliged in terms of s 172(1)(a) of the Constitution, to declare my dismissal invalid. Under the doctrine of objective constitutional invalidity,[2] the implication of its declaration will be that my dismissal "was invalid ab initio and therefore has no effect in law".[3]
23. It would follow from such a declaration that the President does not have the power to appoint a permanent successor to replace me as NDPP. That is because it is necessarily implicit in s 179(1)(a) of the Constitution and ss 10 and 12(1) of the NPA Act that the President may only appoint one NDPP at a time. He does not have the power to appoint a second NDPP during and for any part of the term of office of an incumbent NDPP. The President's appointment of a new permanent NDPP at this stage, would accordingly be ultra vires and in violation of the constitutional principle of legality.
24. The court which declares my dismissal invalid, would have a discretion in terms of s 172(1)(b) of the Constitution, to make any further order "that is just and equitable". It will accordingly have a discretion to reinstate me in office as NDPP or not to do so in the exercise of its discretion to determine what would be "just and equitable" in the circumstances.
25. I have little doubt that, if by then a new NDPP has purportedly been appointed, the President will argue that the fact of the new appointment renders it just and equitable that I should not be reinstated in office. I have little doubt that that is indeed why he now intends to make a new appointment because it is otherwise inexplicable that he does not await the determination of the main application or at least its determination by this court.
26. It would not only be in violation of my rights but would also be contrary to the public interest to allow the President to foreclose and restrict this court's freedom to exercise its "just and equitable" discretion to make such order as it deems fit, by making a new permanent appointment at this stage. It would create a risk of substantial disruption of the work of the NDPP. It will throw into doubt the validity of all the decisions made and actions taken by the new NDPP if this court should hold that he has been appointed in violation of the Constitution and the NPA Act. It would moreover impact upon the rights and legitimate expectations of the new appointee.
27. I ask in the main application and in this application for the President to be interdicted from making a new appointment pending the final determination of the main application. I ask in this application in the alternative however, for such an interdict only until this court has had an opportunity to give judgment in the main application. There is every reason to believe that it will do so within a few months, depending on the learned Judge-President's response to the parties' representations for the special allocation of dates for the hearing of the main application. I submit with respect that the balance of convenience overwhelmingly favours the interim relief I seek, if not pending the final determination of the main application, then in any event pending this court's judgment on it. This court will then have the opportunity, after hearing the matter, to determine in its judgment whether a further interdict should be granted pending the finalisation of the main application in case it should be taken on appeal.
THE FACTS
28. The facts on which I rely, are fully set out in my founding affidavit and reply in the main application. I do not repeat them here. I merely mention some of the milestones and then elaborate on the interaction between the parties since the launch of the main application on 18 February 2009.
29. President Mbeki suspended me from office on 23 September 2007. He appointed Dr Ginwala to hold an inquiry into my fitness to hold the office of NDPP. She was appointed in terms of s 12(6)(a) of the NPA Act. She found that I was fit and proper to hold the office of NDPP. She recommended that I be restored to office. Her finding is contained in her report submitted to President Motlanthe (who had by then succeeded President Mbeki) on 4 November 2008.
30. Despite the finding that I was fit and proper, President Motlanthe removed me from office on 8 December 2008. He purported to do so in terms of s 12(6)(a)(iv) of the NPA Act which permits 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".
31. On 22 January 2009 my attorneys addressed a letter to the President, (It is page 574 of the main application). 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.
32. 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". (His office's reply is 575 of the main application.) His attitude was and is that if Parliament resolved 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.
33. 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. Consequently, my removal from office became final.
34. On 18 February 2009 -
34.1. I applied to court, inter alia, to declare invalid, review and set aside President Motlanthe's decision to remove me from office.
34.2. Pursuant to a media report which suggested that the President was continuing with the appointment of the new NDPP, my attorneys sent an e-mail, a copy whereof is Annexure VP1 hereto, enquiring whether that was the President's official position.
35. The State Attorney responded on 19 February 2009. Annexure VP2 is a copy of her letter. She said the following:
"I have received instructions from the President's office. The President is currently taking advice with regard to the possible appointment of a new Director of Public Prosecutions. No final decision in this regard will be made before the end of next week, i.e. Friday the 27th February 2008. [This was clearly intended to read 27th February 2009].
I am instructed further to advise you that prior notice will be given to you should the President ultimately be of the view that a new Director of Public Prosecutions should be appointed.
It is accordingly unnecessary, at present, for any urgent proceedings to be launched."
36. The clear message conveyed by the letter, was that the President would finally decide whether to make a new appointment by Friday 27 February 2009 and, should he decide to do so, he would give me prior notice of it to allow me to launch urgent proceedings to forestall it. He did not give me any such notice before 27 February 2009 or in the days, weeks and months that followed it. The implication is that his "final decision" taken before Friday 27 February 2009, was not to make a new appointment pending the final determination of the main application.
37. On 26 February 2009, the State Attorney addressed a telefax to my attorneys requesting clarity about the filing of the record. A copy of the State Attorney's telefax is attached hereto as Annexure VP3.
38. My attorneys responded on 27 February 2009. A copy of the response is attached hereto as Annexure VP4. They also enquired whether the President intended filing further reasons for his decision and pointed out that if he intended to do so, those reasons ought to be filed by 3 March 2009.
39. On 3 March 2009, my attorneys addressed a further e-mail to the State Attorney. A copy is attached hereto as Annexure VP5. The State Attorney was once again reminded that the record and any further reasons had to be filed by the end of that day.
40. On 5 March 2009, the State Attorney made the record available for collection at her office and the record was collected from her office.
41. On 6 March 2009 -
41.1. A supplementary affidavit was delivered on my behalf.
41.2. My attorneys sent an e-mail to the State Attorney requesting her to ensure that the President's answering affidavit is delivered by no later than 3 April 2009. A copy of this e-mail is attached hereto as Annexure VP6.
42. On 19 March 2009 -
42.1. The State Attorney sent a telefax, a copy whereof is attached hereto as Annexure VP7, to my attorneys. She recorded that the President would not be able to meet the deadline of 3 April 2009, but that the answering affidavit would be filed as soon as possible.
42.2. My attorneys responded by e-mail, to the State Attorney. A copy of the e-mail is attached hereto as Annexure VP8. My attorneys recorded that their instructions were to hold the President to the 3 April 2009 deadline and in view of the urgent circumstances of the case, they called upon the President to meet the deadline.
43. On 1 April 2009 -
43.1. The State Attorney sent a telefax, a copy whereof is attached hereto as Annexure VP9, to my attorneys requesting an extension of three weeks to deliver the answering affidavit.
43.2. My attorneys responded by email, a copy whereof is attached hereto as Annexure VP10, granting the President an indulgence until 17 April 2009 to deliver the answering papers.
44. The President's answering affidavit was delivered on 17 April 2009, but the State Attorney advised that further affidavits would also be served and filed.
45. By e-mail dated 20 April 2009, a copy whereof is attached hereto as Annexure VP11, my attorneys enquired of the State Attorney exactly when the further affidavits would be filed.
46. On 28 April 2009, the State Attorney sent a telefax to my attorneys dated 24 April 2009, a copy whereof is attached hereto as Annexure VP12. The State Attorney recorded that a number of further affidavits were being finalized.
47. In an e-mail to the State Attorney dated 28 April 2009, a copy whereof is attached hereto as Annexure VP13, my attorneys complained about the delay in the filing of Reverend Chikane's affidavit and also enquired exactly how many further affidavits would be filed and when they would be filed.
48. Reverend Chikane's affidavit was delivered on 29 April 2009, but further supporting affidavits still had to be delivered on behalf of the President.
49. By e-mail dated 4 May 2009, my attorneys enquired from the State Attorney when the further affidavits would be filed. A copy of the e-mail is attached hereto as Annexure VP14.
50. By e-mail dated 7 May 2009, a copy whereof is attached hereto as Annexure VP15, my attorneys requested the State Attorney to urgently let them know when the further affidavits would be filed.
51. By e-mail dated 10 May 2009, a copy whereof is attached hereto as Annexure VP16, my attorneys again asked the State Attorney exactly when the further affidavits were going to be filed.
52. President Mbeki and Minister Mabandla's affidavits were only delivered on 13 May 2009, almost three months after the main application had been launched.
53. On 31 May 2009 the media reported that the Secretary-General of the ANC, Mr Gwede Mantashe, who is also a close confidante of President Zuma, had said that it would be "reckless" for President Zuma to appoint a new NDPP while my challenge to the validity of my dismissal in the main application was still pending. I annex a copy of a report published in the Sunday Independent on 31 May 2009, annexure VP17. The President did not publicly contradict or correct Mr Mantashe's public statement.
54. My replying affidavit was filed on 11 June 2009.
55. On 19 June 2009, my counsel contacted the President's counsel, with a view to agreeing dates for the hearing of the application, so that the Judge President could then be approached for the special allocation of dates for the hearing. The President's counsel indicated that it was premature to agree dates, because they still needed to sort out differences with the parties who indicated their intention to join as amicus curiae.
56. On 1 July 2009 -
56.1. My counsel again contacted the President's counsel, with a view to agreeing dates for the hearing of the application. The President's counsel again adopted the approach that it was premature to agree dates, because they were still waiting to hear whether the Inkatha Freedom Party ("IFP") intended persisting with its application for leave to intervene as amicus curiae.
56.2. My attorneys addressed an e-mail to the IFP's attorneys, in order to try and get the IFP's attorneys to expedite obtaining instructions from its client. A copy of this e-mail is attached hereto as Annexure VP18.
57. On 6 July 2009 my counsel again approached the President's counsel about making special arrangements for the date of the hearing of the application. Both counsel agreed that the attorneys should be requested to set up a meeting with the Judge President for purposes of securing a special allocation for the hearing of the application.
58. My attorneys contacted the Judge President's office on 6 July 2009 in order to set up a meeting to arrange a special allocation. They were advised that the Judge President was away at a conference and it would be best to address the request for the special allocation in writing.
59. My attorneys prepared a draft of the request and forwarded it to the State Attorney on 6 July 2009 for urgent comment, as is evident from the email attached hereto as Annexure VP19. My attorneys called for a response before lunch time on Tuesday, 7 July 2009. However, on Tuesday, 7 July 2009, the State Attorney contacted my attorneys and advised that she would only be able to respond on 8 July 2009. She undertook to do so by lunch time on 8 July 2009.
60. The State Attorney failed to respond. On 8 July 2009 my attorneys sent a further e-mail to the State Attorney reminding her of her undertaking to respond. A copy of this e-mail is attached hereto as Annexure VP20.
61. By 9 July 2009, the State Attorney had still not responded. My attorneys were unable to get hold of her telephonically. Mr Moosajee of my attorneys contacted the President's counsel directly. The President's counsel advised him that the first set of dates that were proposed did not suit him, but he was available for the second set of dates proposed.
62. On 9 July 2009, the request for a special allocation was e-mailed to the Judge President's Registrar. A copy is attached hereto as Annexure VP21.
63. On 15 July 2009 -
63.1. The State Attorney informed my attorneys by telefax that the President intends proceeding with the appointment of the new NDPP. A copy of the telefax is attached hereto as Annexure VP22.
63.2. In an e-mail my attorneys enquired when the President intends making the appointment because I intend applying urgently to court for an interim interdict, and they recorded that the date when the President intends making the appointment would determine the appropriate dates for the application for the urgent interim interdict. A copy of that e-mail is attached hereto as Annexure VP23. My attorneys have still not been advised exactly when the President intends appointing the new NDPP.
64. It is clear from this chronology that I have done everything possible to expedite the finalisation of my application and the delays that have thus far occurred have largely been occasioned by the first respondent.
THE REQUIREMENTS FOR AN INTERIM INTERDICT
65. The requirements for an interim interdict are the following:
65.1. A prima facie right. Such a right exists where there are reasonable prospects of success in the claim for the principal relief, albeit that such prospect may be assessed as weak by the judge hearing the application.
65.2. A well grounded apprehension of irreparable harm to the applicant if the interim interdict is not granted and the applicant ultimately succeeds in establishing his or her right.
65.3. No other satisfactory remedy.
65.4. The balance of convenience favours an interim interdict.
66. My application satisfies these requirements. I set out below how each requirement is satisfied.
A PRIMA FACIE RIGHT
67. The right that is the subject matter of the main application is my right not to be removed from the post of NDPP invalidly, unlawfully and on grounds other than those provided for in s12(6) of the NPA Act and in violation of the constitutional guarantee of prosecutorial independence.
68. President Mothlanthe purportedly removed me from office because he says that I am not a fit and proper person to hold office as NDPP.
69. I may only be removed as NDPP if I am not a fit and proper person to hold the office of NDPP as contemplated by 12(6)(a)(iv) of the NPA Act. That means that I may not be removed if I am qualified for office, have the requisite experience, I am conscientious in the execution of the duties of the office and if I execute those duties with integrity.
70. As is apparent from paragraphs 48 to 50 of the founding affidavit in the main application and the first respondents answer to these paragraphs, it is undisputed that I am qualified, experienced and that I have carried out the duties of the office of NDPP conscientiously. So, for example, President Motlanthe himself confirms in paragraph 3 on page 3 of his letter of dismissal[4] of the main application, that "Adv Pikoli's professional competence is not in question".
71. As is also apparent from paragraph 51 of the founding affidavit in the main application my integrity is also beyond question. Indeed, there is no evidence that I lack integrity. In the founding affidavit I said the following:
71.1. 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";[5]
- "impressed me as a man of unquestionable integrity, with passion to execute his constitutional responsibilities without fear, favour or prejudice";[6] and
- "impressed me as a person of unimpeachable integrity and credibility".[7]
72. As I said in the founding affidavit, the findings by Dr Ginwala rule out any suggestion that I am no longer fit for office, and President Motlanthe never challenged these findings. Voluminous answering affidavits do not contain any evidence of a lack of integrity or competence. To the contrary President Mothlante said the following at paragraph 54.1 (page 674):
"It is not suggested that Advocate Pikoli is professionally incompetent or that he lacks integrity".
73. In his answering affidavit, President Motlanthe says that his conclusion that I was no longer fit for office was based entirely on Dr Ginwala's report.
74. Her report came to the opposite conclusion. On his own approach, President Motlanthe should not have removed me from office. Dr Ginwala dismissed all the government's charges against me. She did not confine herself to the reasons President Mbeki had originally advanced for my suspension. She dismissed all the charges government advanced against me in the enquiry in justification of the suspension and not merely the reasons President Mbeki had originally advanced for it. She held that none of the government's attacks on my fitness for office had been substantiated and that I should be restored to office.
75. President Motlanthe relies for his conclusion that I am not fit and proper on concerns expressed by Dr Ginwala about my "two weeks - one week" conversations with President Mbeki over the weekend of 15 and 16 September 2007.
76. President Motlanthe was wrong to rely on these concerns. Although Dr Ginwala did express concerns about my understanding of and sensitivity for issues of national security, she recognised that she could not in fairness make any finding on my fitness for office on this score because it was not a charge I was ever called upon to answer and rebut.
77. President Motlanthe misconstrued the finding by Dr Ginwala that government had failed to substantiate "the reasons given for the suspension" and that I should thus be restored to office. In the context of her report, she clearly meant that government had failed to substantiate any of the reasons advanced by government in the enquiry as justification for my suspension and for why I am not fit and proper to continue to hold office as NDPP.
78. President Motlanthe however misconstrued this statement and, on the basis of his distortion of it, accused Dr Ginwala of misconstruing her mandate. He makes this clear in paragraph 14 (page 655) of his answer:
"I submit that Dr Ginwala misconstrued her mandate as set out in the Terms of Reference. Her mandate was to determine the fitness and propriety of the applicant to hold office and not to determine the appropriateness of his suspension. Dr Ginwala clearly conflated the suspension and grounds for removal from office."[8]
79. Dr Ginwala did not confine her enquiry to the reasons President Mbeki had originally advanced for my suspension. She enquired into and dismissed all the grounds upon which government contended before her, that I was unfit for office. President Motlanthe could not have misunderstood her report on this score if he had read it with any care at all.
80. President Motlanthe says in paragraph 97.3 (page 696) of his answer that he rejected Dr Ginwala's conclusion because it "was not justified on the basis of the adverse findings made by her".
81. Her adverse findings were peripheral to her main findings. The latter concern the reasons given for the allegation that I am not fit and proper to continue to hold office as NDPP and the reasons given for my suspension.
82. Indeed, Dr Ginwala confirmed in her report that the adverse finding relating to my "two weeks - one week" conversations with President Mbeki cannot be taken into account or held against me. My stance adopted in those conversations, were never given as the reason for why government said I was no longer fit and proper for the office of NDPP.
83. The reasons given for my suspension and the allegation that I am no longer fit and proper were not proved in evidence before Dr Ginwala. She concluded that they were without substance and that I am fit and proper and should be restored to office. President Motlanthe rejected this conclusion. In doing so, he said that he relied on Dr Ginwala's report. His rejection of her conclusion is not only wrong, but irrational. He could not have relied on it, yet at the same time reject it, particularly after she carefully distinguished between the charges and evidence against me and her adverse finding on the "two weeks - one week" discussion, which were not the grounds on which I was suspended or on which government alleged I am not fit and proper.
84. President Motlanthe says in paragraph 97.3 (page 696) of his answer that he rejected Dr Ginwala's conclusion because she "had no authority to make such a recommendation". But this contention is quite unfounded. As appears from Dr Ginwala's Terms of Reference annexure 302 at 304 of the main application, paragraph 2, her primary mandate was to enquire into and determine my fitness for office. She enquired into all the grounds upon which government contended that I was not fit for office and rejected all of them. It was thus inevitable that she should conclude that I was fit for office and should be restored to it. President Motlanthe's suggestion that Dr Ginwala had no authority to make this recommendation is simply wrong.
85. As for my "two weeks - one week" conversations with President Mbeki, it is clear that no adverse finding should or could be made against me based on those conversations. I deal with the responses by President Mbeki and the Reverend Chikane who were both present at those conversations at, inter alia, paragraphs 55 to 122 of my replying affidavit in the main application (pages 902 to 940). The following is clear from their responses:
85.1. They confirm that the "two weeks - one week" conversations took place on the weekend of 15 and 16 September 2007. They do not explain why neither they nor government ever raised it at any time before or during the Ginwala enquiry. They do not explain why senior counsel for the government put to me in cross-examination and then submitted to Dr Ginwala that there had never been such conversations and that my evidence about it was a contrived fabrication. That version could only have come from President Mbeki or Reverend Chikane. Neither takes responsibility for it, or makes any attempt to explain it.
85.2. They do not dispute that President Mbeki never made any attempt to explain why one week was not enough and why two weeks were required for him to do whatever he deemed necessary to facilitate the execution of the warrants. The gist of these conversations is that President Mbeki asked for two weeks before execution of the Selebi warrants. I offered a week instead. He never said that a week was not enough or explained why that should be so. He created the clear impression that, although he would have preferred two weeks, a week would do.
85.3. They do not refute the fact that my attitude at the time was that I was acutely sensitive to the need for the President to be placed in a position to take whatever steps necessary to protect the national interest and avoid embarrassment to the country. I made this clear during my meetings with the President and Reverend Chikane over the weekend of 15 and 16 September 2007. If there was any misunderstanding in this regard, I in any event cleared it up in my letter to the Minister a few days later on Wednesday 19 September 2007 when I said the following:
"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."[9]
85.4. On their version of the "two weeks - one week" discussions it is now clear that President Mbeki suspended me to stop or at least delay the imminent arrest and prosecution of Mr Selebi. This is of crucial significance because government never advanced this as a reason for my suspension and indeed vehemently persisted in their denials of it from the time of my suspension until the end of the Ginwala Enquiry.
86. It is thus apparent that I do have a prima facie right and that there are reasonable prospects of success in the main application. The decision to remove me on the ground that I am not fit and proper is invalid and reviewable under PAJA. It is not authorized by s12(6)(a)(iv) of the NPA Act. It is also reviewable under PAJA on the grounds set out in paragraphs 230 to 248 of the founding affidavit in the main application (pages 104 to 113). It is lastly also a violation of the constitutional guarantee of prosecutorial independence protected by s179(4) of the Constitution.
IRREPARABLE HARM
87. I do have a well-grounded apprehension of irreparable harm, should the interim relief not be granted. I am entitled to be restored to the office of NDPP. There are reasonable prospects that the review court will restore me in office.
88. As stated in paragraph 40 of the founding affidavit in the main application (pages 24 and 25), if the court should uphold the main application my removal from office was unlawful and invalid. The President does not have the power to appoint a new permanent NDPP in the face of my invalid and unlawful removal. 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.
89. If he does and my application succeeds - and it is likely that it will - I would have to apply to court to set aside the appointment of the new NDPP. That would entail further litigation and the incurrence of further litigation costs.
90. As is apparent from the chronology, it has taken months to get the main application to court, resulting in a lengthy delay in my restoration to office. The delay has not been through any fault on my part (Government took almost three months to file all its answering affidavits). A new appointment could delay my restoration to office even further. That is unnecessary and can and should be avoided. It should especially be avoided where matters of great public interest and importance are involved.
91. The appointment of a new NDPP violates the constitutional guarantee of prosecutorial independence and the rule of law. It would be contrary to the public interest for the President to make a new permanent appointment before this application is finally determined, particularly when it is likely to result in my restoration in office and the vindication of the constitutional guarantee of prosecutorial independence as well as the rule of law.
NO ALTERNATIVE REMEDY
92. It is self-evident that I have no alternative remedy. I seek to protect my right to have my removal from office set aside on review and the constitutional guarantee of prosecutorial independence. Their protection can only be achieved by way of an application for interim relief. There is no other remedy available to me for the protection of these rights.
BALANCE OF CONVENIENCE
93. Interim relief pending the final determination of the main application will not place the administration of the NPA at risk. The current acting NDPP has been acting since my suspension in September 2007. He is a senior official in the NPA and was one of the deputy-national directors. He is a capable lawyer and manager. There is nothing to suggest that the NPA has not functioned professionally and competently under his supervision and guidance. There is no reason to believe that he will not continue to run it professionally and competently. The NPA will not be prejudiced by a stay of the appointment of a new NDPP.
94. My attorneys have already made contact with the Judge President of this court with a view to arranging an agreed time for the hearing of the main application. I have no reason to believe that it will not be heard next term.
95. As is apparent from what I say above, I will be greatly prejudiced by the appointment of a new NDPP. So will the constitutional guarantee of prosecutorial independence and the public interest.
96. My restoration to office will be delayed. It will result in increased litigation costs. The public interest in the constitutional guarantee of prosecutorial independence will suffer greatly. The guarantee will have been violated. The Constitution and the rule of law will have been violated. Public confidence in prosecutorial independence and the protection of the rule of law will be shaken and will fall.
PRAYER
97. A case for interim relief has been made out. I accordingly ask for an order in the terms set out in the notice of motion. This application is urgent because if urgent relief is not granted there is a real risk that the President will appoint a new NDPP. He has plainly through his lawyers expressed an intention to do so.
_____________________________
VUSUMZI PATRICK PIKOLI
Click here to sign up to receive our free daily headline email newsletter
[1] Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the RSA 1996 (4) SA 744 (CC) para 146
[2] Ferreira v Levin 1996 (1) SA 984 (CC) paras 25 to 30; Prince v President, Cape Law Society 2001 (2) SA 388 (CC) paras 36 to 37; Ex parte Women's Legal Aid Centre: In re Moise v Greater Germiston Transitional Local Council 2001 (4) SA 1288 (CC) paras 12 to 14; Ingledew v Financial Services Board 2003 (4) SA 584 (CC) para 20; Shaik v Minister of Justice and Constitutional Development 2004 (3) SA 599 (CC) para 27; Gory v Kolver 2007 (4) SA 97 (CC) para 39; Weare v Ndebele 2009 (1) SA 600 (CC) paras 39 to 40; Kruger v President of the RSA 2009 (1) SA 417 (CC) para 52
[3] Kruger v President of the RSA 2009 (1) SA 417 (CC) para 52
[4] annexure 563 at 565,
[5] Ginwala report annexure 306 at 378 para 95
[6] Ginwala report annexure 306 at 486 para 284
[7] Ginwala report annexure 306 at 494 para 296
[8] President Motlanthe repeats this interpretation in his answer p 656 para 16 and p 665 paras 37.3 to 37.6
[9] Letter 19 September 2007 annexure 277 at 278 para 4
