REPORT OF THE ENQUIRY INTO THE FITNESS OF ADVOCATE VP PIKOLI TO HOLD THE OFFICE OF NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS NOVEMBER 2008

EXECUTIVE SUMMARY

1 This Enquiry was established in terms of s. 12(6)(a) of the National Prosecuting Authority Act No 32 of 1998 ("the Act"), following the suspension of Adv Vusi Pikoli ("Adv Pikoli") from office as the National Director of Public Prosecutions ("NDPP") by the President on 23rd September 2007.

2 The terms of reference dated 3 October 2007 identified the issues to be determined by the Enquiry as:

"2.1 The fitness of Advocate V Pikoli, to hold the office of National Director. In particular:

"2.1.1 Whether he, in exercising his discretion to prosecute offenders, had sufficient regard to the nature and extent of the threat posed by organised crime to the national security of the Republic.

"2.1.2 Whether he, in taking decisions to grant immunity from prosecution to or enter into plea

bargaining arrangements with persons who are allegedly involved in illegal activities which constitute organised crime, as contemplated in the Act, took due regard to the public interest and the national security interests of the Republic, as contemplated in section 198 of the Constitution, as well as the Prosecution Policy.

"2.2 Whether the relationship between the National Director and the Minister has irretrievably broken down. In particular,

"2.2.1 Whether he failed to appreciate the nature and extent of the Constitutional and legal oversight powers of the Minister over the prosecuting authority;

"and such other matters as may relate to the fitness and propriety of the National Director to hold office."

3 Whilst the suspension or removal of the NDPP from office is statutorily regulated, the Act does not provide any guidance on the nature of such an enquiry. Being the first such enquiry conducted under the Act and there being no precedent to follow, I determined rules and procedures in the context of the Act and the terms of reference, after consulting the parties. The intention was that the process should be investigative and inquisitorial rather than adversarial and accusatorial. Nevertheless some aspects of a judicial process did feature in this Enquiry. We also endeavoured to make the work of the Enquiry as open and transparent as possible. The rules of the Enquiry were framed in a way that severely limited the classification of submissions and documents, and enabled the hearings to be largely conducted in public.

4 The Rules provided for the submission of written documentation by the parties covering the matters raised in the terms of reference. The Enquiry received Government's original submission in October 2007, and further and replying submissions in January and February 2008 respectively. The submissions included affidavits from the Honourable Minister of Justice and Constitutional Development, Ms Mabandla; the Honourable Deputy Minister of Justice and Constitutional Development, De Lange; the Director General in the Presidency, Rev Chikane; the advisor to the Presidency, Adv Gumbi; the Director General of the Department of Justice and Constitutional Development, Adv Simelane; the Director General of the National Intelligence Agency, Mr Manzini; the Deputy Director General of the National Intelligence Agency, Mr Fraser; the Deputy National Commissioner of Police, Mr Williams; and the Assistant Commissioner in the South African Police Service, Mr Jacobs.

5 Adv Pikoli filed his submission to the Enquiry in February 2008. His submission included his sworn statement as well as affidavits from the Regional Head of the Directorate of Special Operations ("DSO"), Gauteng, Adv Nel; the Investigating Director of the DSO, Adv Mngwengwe; a Deputy National Director of Public Prosecutions, Mr Ramaite; a Deputy Director of Public Prosecutions, Mr Pretorius; the Special

Director of Public Prosecutions, Ms Pillay; the Director of Public Prosecutions, Witwatersrand Local Division, Adv de Beer; and Mr Small-Smith, an attorney. Adv Pikoli also submitted correspondence and documents related to the issues raised in the Enquiry.

6 An assessment of the submissions from the parties, together with their responses to some specific queries that subsequently I raised with them, convinced me that there were disputes of fact that could not be resolved on the papers alone. Government maintained that the disputes of fact were not material to any finding I was required to make under the terms of reference. It was nevertheless determined that there should be hearings at which oral evidence be presented. Given the level of public interest in this Enquiry I also decided that the hearings be held in public, unless the evidence to be tendered concerned matters which were sub judice, pending before our courts, otherwise protected from public disclosure or which may impact on national security.

7 The hearings were conducted on eleven days between 7 May 2008 and 1 August 2008 in Johannesburg. Evidence

was tendered by seven witnesses, and both parties presented closing arguments to the Enquiry. The witnesses for Government were the Honourable Deputy Minister of Justice and Constitutional Development, Hon De Lange; the Director General in the Presidency, Rev Chikane; the Director General of the Department of Justice and Constitutional Development, Adv Simelane; the Director General of the National Intelligence Agency, Mr Manzini; and the Deputy Director General of the National Intelligence Agency, Mr Fraser.

8 Adv Pikoli gave evidence and also called the evidence of the Regional Head of the DSO, Gauteng, Adv Nel.

9 In its written submissions and the oral evidence given by its witnesses Government made a wide range of allegations against Adv Piloli to demonstrate that he is no longer a fit and proper person to hold office as the NDPP. Some of these allegations are quite tangential to the terms of reference as well as the reasons for the suspension articulated in Adv Pikoli's letter of suspension. These allegations are often also far removed in time from the date of the suspension. The nature and content of the allegations against Adv Pikoli also changed during the course of the Enquiry.

10 In considering the allegations and complaints against Adv Pikoli, the Enquiry duly considered the concept of fit and proper with regard to the attributes specifically required of an NDPP; the concepts of the final responsibility of the Minister and its relationship with the prosecutorial independence of the NDPP; and the imperative of co-operative government within the context of our constitutional dispensation as articulated in s.41 of the Constitution.

11 Government's allegations with regard to Adv Pikoli's conduct and the findings that have been made are as follows:

11.1 Government alleged that the relationship between the Minister and Adv Pikoli had broken down irretrievably.

This allegation has not been proven.

11.2 It was alleged that Adv Pikoli should not have authorised plea and sentence agreements with the persons implicated in the alleged murder of Mr Brett Kebble and should rather have prosecuted all suspects.

Government did not show that Adv Pikoli, in exercising his discretion of whether or not to prosecute, did not take heed of the threat posed by organised crime to national security.

11.3 Government alleged that Adv Pikoli should not have concluded plea and sentence agreements with some of the alleged Equatorial Guinea mercenaries, and should not have authorised the prosecution of the other alleged Equatorial Guinea mercenaries. It was alleged that the plea and sentence agreements with Mr Agliotti and Mr Nassif did not take due account of the prosecution policy and particularly the public interest and the national security interests of the Republic.

Government failed to produce evidence to show that the cases of plea and sentence agreements it cited had contravened the prosecution policy.

11.4 Government alleged that Adv Pikoli sought to pursue the listing of the DSO as a public entity under the Public Finance Management Act ("PFMA") despite the Minister's concerns that it was a policy matter that required discussion by Cabinet.

Adv Pikoli was legally obliged to inform Treasury that the DSO was not listed as a public entity, but he should have informed the Minister before doing so.

11.5 Government complained that Adv Pikoli failed to account to the Director General of the Department of Justice and Constitutional Development, and thereby prevented the latter form executing his accounting responsibilities. Adv Pikoli was not obliged to account to the DG: Justice in the manner alleged by Government.

11.6 Government alleged that Adv Pikoli failed to inform the Minister of the information that came into the possession of the DSO and led to the preparation of the Browse Mole Report, and also that he failed to stop the DSO from pursuing a matter that was outside its mandate.

Adv Pikoli was obliged to inform the Minister of the information that emerged from the Browse Mole investigation in March 2006, and he should have ordered the DSO to stop any further involvement in the matter.

11.7 Government complained that Adv Pikoli failed to inform the Minister of the alleged conspiracy to assassinate the Malawian President, and that the involvement of the DSO in the Malawian investigation constituted intelligence gathering and fell outside its mandate.

Adv Pikoli was obliged to inform the Minister of the plot to assassinate the Malawian President as soon as he became aware of it. The NPA dealt with the matter in terms of the law, and did not investigate an intelligence matter outside its mandate.

11.8 Government alleged that Adv Pikoli did not prevent a member of the DSO from engaging in unregulated

contact with foreign intelligence services.

Adv Pikoli could not be held responsible for interaction by members of the DSO with foreign intelligence services that occurred before he took office or of which he was unaware through no fault on his part.

11.9 Government alleged that Adv Pikoli should have informed the Minister before applying for search and seizure warrants at the Union Buildings and Tuynhuys, and should have ensured that adequate measures were in place to prevent any security breaches during the execution of the warrants.

Adv Pikoli failed to inform the Minister and the President prior to applying for the search and seizure warrants at the Union Buildings and Tuynhuys in August 2005, and failed to ensure that proper security measures were followed during this operation.

11.10 Government complained that Adv Pikoli failed to inform the Minister and the President prior to applying for the warrants of arrest and search and seizure against the National Commissioner of Police, and that he failed to exhaust the options for accessing information from the SAPS put in place by the Presidency, which information was required by the DSO for its investigation of Operation "Bad Guys".

Adv Pikoli should have informed the Minister before applying for arrest and search and seizure warrants against the National Commissioner of Police. He also failed to exhaust all the options available through the facilitation of the Presidency to access information held by SAPS.

12 Adv Pikoli asserted that the reason for his suspension was to stop the prosecution of the National Commissioner of Police. This view could not be sustained on the evidence before the Enquiry.

13 I have found that Government has failed to prove many of these allegations and has not demonstrated that Adv Pikoli is no longer fit and proper to hold office as the NDPP. The grounds advanced by Government for the suspension of Adv Pikoli have not been established before the Enquiry.

14 I am not of the opinion that there has been an irretrievable breakdown in the relationship between the Minister and Adv Pikoli. However, their interaction has been marred by differences in understanding of the respective duties and responsibilities of each office with regard to the prosecuting authority. These differences can be overcome though collegial discussion and the establishment of formal channels of communication on operational and policy matters. Moreover, I find it probable that the differences in their respective understandings were precipitated by the DG: Justice's misconception of his authority over the NPA, which influenced his reports to the Minister.

15 I need to draw attention to the conduct of the DG: Justice in this Enquiry. In general his conduct left much to be desired. His testimony was contradictory and without basis in fact or in law. The DG: Justice was responsible for preparing Government's original submission to the Enquiry in which the allegations against Adv Pikoli's fitness to hold office were first amplified. Several of the allegations levelled against Adv Pikoli were shown to be baseless, and the DG: Justice was forced to retract several allegations against Adv Pikoli during his cross-examination.

16 I have also found issues of concern in the capacity and understanding of Adv Pikoli to carry out the responsibilities of the office of NDPP. These relate primarily to his understanding of issues pertaining to national security and his lack of appreciation of the sensitivities of the political environment in which the NPA needs to operate, which sensitivity would not be incompatible with his prosecutorial independence.

17 My most serious concerns arise from the evidence of the discussions between the President and Adv Pikoli at their meetings just prior to Adv Pikoli's suspension. Adv Pikoli also did not give due consideration to the actions the President might need to take in order to defuse a potential security crisis and instability and to preserve the country's international reputation. He did not take seriously the President's concerns about the mood of the SAPS and their possible reaction to the arrest of the National Commissioner; and even challenged the President's assessment of the time he would require to manage the situation. Had this been presented as a reason for the suspension, when his 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 among the reasons put forward by Government before this Enquiry.

18 The recommendations that I make are aimed at facilitating a more co-operative approach between the NDPP and the Minister of Justice and Constitutional Development as the political head with final responsibility over the national prosecuting authority. It is to be hoped that the implementation of these measures will create a more harmonious relationship between the offices of the NDPP and that of the Minister, and enhance the capacity of the prosecuting authority to execute its functions.

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The full text of the report follows in the PDF attachment below