Minutes of Advocate Vusi Pikoli's presentation to the Ad Hoc Joint Committee to Consider Matters in terms of Section 12 of National Prosecuting Authority Act (Pikoli), January 20 2009. Chaired by Mr L M Kgoshi (ANC, Limpopo) and Mr O Monareng (ANC)

Summary:

Advocate Vusi Pikoli addressed the Committee on his removal from office as the National Director of Public Prosecutions. He noted that military training and membership of a national liberation organisation had sensitised him to issues of national security. His bona fides had further been strengthened when he served as special adviser to the then Minister of Justice, chaired a Ministerial Committee tasked with investigation into transformation of the civilian intelligence sector, and served as Deputy Chairperson investigating the transformation of the defence intelligence agencies.

As Director-General in the Department of Justice, he sat on the National Security Council of Directors General that discussed national security and he had participated in a comprehensive security strategy for the Justice, Crime and Prevention Cluster. This was sufficient exposure and experience to make him sensitive to national security issues. Thus he found it strange that the President had ruled that he had been insensitive.

Adv Pikoli stated that had the Directorate of Special Operations not investigated the murder of Brett Kebble, he would not have been fired. His refusal to follow an unlawful instruction from the Executive had been a just decision, as it would have been unconstitutional to follow the instruction. Had he not refused, he would not have been relieved of his duties. He had done what had been expected of him constitutionally. His submission to the Committee should not be seen as being done out of personal interest or for reinstatement purposes, but to rectify a travesty of justice which the Committee had to address.

Adv Pikoli referred to the matter of the National Director of Public Prosecutions of Malawi asking South Africa's National Prosecuting Authority for assistance in a case that involved a plan to assassinate the Malawian President. The request had not been considered unusual as South African legislation provided for this and the request had been forwarded to the Department of Justice for consideration. A follow-up meeting had been held, where the Director General of the Department of Justice had been present. This could not have been considered to be an intelligence meeting. On this matter, the Ginwala Report agreed. The request from the Malawian NDPP had been a purely legal request and proper steps had been followed, despite the criticism that he should have informed the Minister of Justice of the assassination plot.

Adv Pikoli stated that the Ginwala Report had noted that the investigation that led to the Browse Mole Report, had not been authorised by him. However, the criticism had been that Adv Pikoli should have stopped the investigation, informed the Minister and taken action against the former Head of the Directorate of Special Operations. He explained that he had received a draft copy of the Report and concluded that although certain facts contained in the Report seemed credible, many others did not make sense.

He subsequently instructed the DSO Head "to file" the draft report. When the final report had been given to him, he realised that the DSO had gone further than its mandate. He instructed the DSO Head to shelve the report. However, there had been issues mentioned in the report that had warranted further investigation and it had been decided to send copies to the Directors General of National Intelligence Agency and the South African Secret Service. He had expressed his disapproval towards the DSO Head. Ultimately it had been the President's prerogative to reprimand the DSO Head.

Members of the ANC noted that they did not have a problem with Adv Pikoli's professional conduct, but the problem was whether he had compromised national security. The members of the opposition parties slammed the decision taken by the President to axe Adv Pikoli.

Minutes:

Opening Remarks

Mr Oupa Monareng (ANC) welcomed Members, Adv Vusi Pikoli and his legal council as well as others present. He asked Adv Pikoli to begin with his presentation.

Mr Steve Swart (ACDP) objected to the continuation of the meeting as the Committee still awaited legal council on the suitability of Mr Monareng serving as Co-Chairperson of the Ad Hoc Committee.

Mr Monareng noted that the State Law Advisor's Office (SLA) had been consulted and asked the SLA to explain the legal opinion.

The SLA stated that his Office had looked at two issues, mainly the objection to Mr Monareng chairing the Committee due to a previous conviction of bribery and any other legal impediments.

He said that according to the Joint Rules of the House, if parties had objections to an individual chairing a Committee then those parties had to engage with either the Speaker of the National Assembly or the Chairperson of the National Council of Provinces (NCOP) depending on the House in which the Member served. The matter had been referred to the Speaker. On the issue of Mr Monareng's eligibility, he stated that no legal impediment had been found that prevented Mr Monareng from executing his duties.

Mr Koos van der Merwe (IFP) asked whether Adv Pikoli had provided any documentation.

Advocate Pikoli's Submission

Adv Vusi Pikoli said that his legal team had submitted evidence to the Ginwala Commission and that it was contained in the Ginwala Report. Dr Frene Ginwala had vindicated him and restored his integrity and it had been an indication of the integrity of the National Prosecuting Authority (NPA) and the prosecutors who had reported directly to him.

The vindication had been gratifying given the fact that the International Association of Prosecutors had awarded him with an award for prosecutorial independence. The Ginwala Report also concluded that he should be restored to office and it found him to be of unimpeachable integrity and credibility and that there had been a passion to conduct his function without fear or prejudice.

He had been shocked when he had learned that President Motlanthe had decided to fire him on the basis that he was not sensitive enough to matters of national security as he did not directly work with Intelligence. The President had also stated that neither his professional conduct, nor his professionalism, had been questionable.

He divided the adverse findings into five categories and began to refute them accordingly.

Adv Pikoli noted that he had been a member of a national liberation movement and thus had exposure to the issues of security and due to his involvement with banned organizations and Mkonto we Sizwe, he had had to contend with ‘national security' issues on a regular basis. He had witnessed raids in Lesotho by the former South African Defence in Lesotho in 1982 when 42 people killed, that also served as exposure to issues of security. Military training had sensitized him to issues of national security during the threats of raids by the Apartheid regime as they posed a security threat to the liberation organization.

His bona fides had further been strengthened when he started working as a special adviser to the late Minister of Justice, Dullah Omar, chaired a Ministerial Committee tasked with the investigation into the transformation of the civilian intelligence sector, and served as Deputy Chairperson investigating the transformation of the defence intelligence agencies. He noted that he had never claimed to be a security expert; but that the sufficient exposure he had received made him sensitive to national security issues.

As Director-General (DG) of the Department of Justice, he had sat on the National Security Council of Directors General that discussed issues of national security and had also participated in a comprehensive security strategy for the Justice, Crime and Prevention Cluster. Thus he found it strange that the President ruled that he had been insensitive.

Adv Pikoli said that had the Directorate of Special Operations (DSO) not investigated the murder of Brett Kebble then he would not have been fired and that his refusal to follow an unlawful instruction from the Executive had been a just decision as it would have been unconstitutional to follow the instruction. Had he not refused, then he would not have been relieved of his duties. He had done what had been expected of him constitutionally and that his submission to the Committee should not be seen as being done out of personal interest or for reinstatement, but to rectify a travesty of justice which the Committee had to address as Members had a challenge ahead of them.

He added that he had continually informed the Minister about all of the sensitive investigations and that the Ginwala Commission had found that it had been in accordance with the law.

Adv Pikoli noted that the search and seizures on the Union Buildings had never been a bone of contention until his suspension. He pointed out that the warrants for the search and seizure had been obtained prior to his informing the then Deputy President, Mr Jacob Zuma, the DG and Minister of Justice as well as the DG and Minister in the Presidency. He had informed the principals about the warrants for the search and seizures on the Union Building as it had been a very serious matter and that an enabling environment had to be created before the National Prosecuting Authority could continue with the operation.

The NPA made sure that at no time would national security be compromised and instructed the Gauteng Directorate of Special Operations Head to engage with Rev Frank Chikane (DG in the Presidency) on the issue. The Ginwala Report stated that there had been no violation on those issues based on factual information and that the checks on computers had been overseen by the National Intelligence Agency and IT specialists from the Presidency.

Adv Pikoli said that the National Director of Public Prosecutions (NDPP) of Malawi had asked the NPA for assistance in a case that involved a plan to assassinate the Malawian President. The request had not been considered unusual as South Africa had legislation that provided for this and the request had been forwarded to the Department of Justice (DoJ) for consideration. A follow-up meeting had been held where the DG of the Department of Justice had been present. That it could not have been considered to be an intelligence meeting. The Ginwala Report had agreed that the request from the Malawian NDPP had been a purely legal request and that the proper steps had been followed, despite the criticism that he should have informed Minister of Justice of the assassination plot against the Malawian President.

Adv Pikoli stated that the Ginwala Report had noted that the investigation that led to the Browse Mole Report, had not been authorised by him. However, the criticism had been that Adv Pikoli should have stopped the investigation, informed the Minister and taken action against the former Head of the Directorate of Special Operations, Adv Leonard McCarthy.

He explained that he had received a draft copy of the Report and concluded that although certain facts contained in the Report seemed credible, many others did not make sense. He subsequently instructed Adv McCarthy to shelve the draft report. When the final report had been given to him, he realised that the DSO had gone further than its mandate. He instructed Adv McCarthy to shelve the report.

However, he realised that there had been issues mentioned in the report that had warranted further investigation and it had been decided to send copies to the Directors General of National Intelligence Agency and the South African Secret Service. He had expressed his disapproval at the DSO Head. Ultimately it had been the President's prerogative to reprimand the DSO Head.

Adv Pikoli stated that he had received a lashing from the Ginwala Commission on how he had handled the investigation and possible arrest of National Commissioner Selebi. He said that he disagreed as he had always kept the President and the Ministers of Justice, Safety and Security and Defence abreast of developments of a possible criminal prosecution against the Police Commissioner. A warrant had finally been obtained after a "long list" of correspondence, but the Ginwala Commission had ruled that Adv Pikoli should have informed the Minister of Justice and President on obtaining the warrant.

He explained that he had ensured that the necessary environment had been created for investigation. However, the follow-up meetings with SAPS had come to naught as SAPS became an obstacle in the NPA's investigation. The other main concern had been about the request for a one week/two week postponement of the execution of the warrants by former President Mbeki at a meeting between the two of them. He found it strange that the Presidency's legal representatives had disputed that the request for the postponement had been raised by President Mbeki.

He had informed the President of the obstacle that SAPS had become in the investigation and that he thought that the necessary state machinery would take care of the situation and ensure that the judicial orders were executed as requested. The Ginwala Report dismissed the Selebi affair as the reason for Pikoli's suspension, but he maintained that he had initially been suspended due to his refusal to halt the investigation into the Selebi affair.

Adv Pikoli added that the one week/two week matter had never been a problem. Nor had the President or the Justice Minister raised it as being inadequate and Rev Chikane had been mandated to convene a meeting of the National Security Council to discuss the matter.

He found it strange that the President had requested more information on the matter from the Justice Minister on 17 September, given the fact that he had already briefed the President on 16 September 2007 about the matter. The Executive then instructed the NPA to halt the investigation of Selebi, until the Justice Minister reviewed the process, but he had refused at which time the President asked him to resign. On the 23 September the President suspended him.

Discussion

Mr B Magwanishe (ANC) said that Adv Pikoli had admitted to the Ginwala Commission that some of the findings contained in the Browse Mole Report had been outlandish and that it would cause an outrage, yet Adv Pikoli still claimed he had done nothing wrong. He asked whether Adv Pikoli thought he had failed in his duties and whether he would have taken the same actions if he were the President. The fact that Adv Pikoli had merely browsed through the Report had been an act of gross incompetence, as the findings, although quite bizarre, could have damaged many people's lives. He asked whether he had advised the President on the appropriate steps that had to be taken against the DSO Head.

Mr T Delport (DA) asked to what extent Adv Pikoli would pursue criminal investigations where national security was concerned, what his understanding of national security had been and whether he would investigate a President on criminal charges or whether national security would supersede such an investigation.

Mr K van der Merwe (IFP) said that Adv Pikoli had successfully refuted the five adverse Ginwala findings and that he should be reinstated, but that some Members would seek to discredit Adv Pikoli. This Committee was part of the window dressing to camouflage the influence of Luthuli House and the resolution taken at Polokwane. He asked whether Adv Pikoli knew who hated him so much and whether it had been true that an offer of R10 million had been made as compensation by the state.

Mr Magwanishe objected to Mr van der Merwe's comments as the Committee had been convened to discuss the fitness of Adv Pikoli to hold public office and not to make political statements.

Kgoshi Mokoena appealed to the Members to focus on the task at hand and to refrain from making political statements.

Mr Z Ntuli (ANC,Kwazulu-Natal) asked why Adv Pikoli had made use of private security firms when it executed the search and seizure warrants at the Union Buildings and whether the competition between SAPS and the NPA played a role in this regard.

Ms Patricia De Lille (ID) said that all persons are equal before the law and commended Adv Pikoli on his excellent struggle credentials. She noted that the failure of the Ginwala Commission to interrogate the second submission by Adv Pikoli had resulted in his axing by the President who had used that submission for the axing of Adv Pikoli. She noted that she had found Adv Pikoli to be fit and proper for public office and that the Terms of Reference had made that clear as far as she had been concerned.

Mr S Swart (ACDP) said that experience had shown that the Executive would always interfere in the work of the NPA as seen with the Jackie Selebi case and that he failed to see why national security had been cited as the reason for his axing. It would be prudent for Adv Pikoli to explain the security of tenure. Through all his dealings as a member of the Justice Portfolio Committee, the issue of national security had never ever been discussed with Adv Pikoli, first as the Justice DG and then as NDPP. He said that Adv Pikoli had always displayed honesty, integrity, conscientiousness and trust.

Adv Pikoli replied that that it had been correct that he had initially just flipped through the Browse Mole Report as it had been a draft and not a final copy and that it contained a mixture of fiction and truth. He stated that the Adv McCarthy had informed him that it had been a work in progress as it did not contain any recommendations. He felt uncomfortable with the content of the Report and wished it to just disappear as he knew that it would cause problems. He conveyed his disapproval to Adv McCarthy, but it had contained some credible information that pointed towards money laundering and foreign exchange criminal activities.

Adv Pikoli said that it had not been his duty to advise the President on national security issues and that his primary role as NDPP had been to enforce the law and that he had raised the issue with the President.

He noted that Mr Magwanishe had been wrong to make the assumption that he had been fired due to his insensitivity to national security issues. The Kebble investigation led by the DSO had been the sole reason why he had been axed. It was his refusal to adhere to an instruction by the Justice Minister to halt the Selebi investigation citing that the public interest had to be taken into account.

The Acting National Director of Public Prosecutions, Adv Mokotedi Mpshe had subsequently received an instruction to review the Selebi case and had come to the conclusion that the case should continue on the very day that Adv Pikoli had been suspended. The panel that had been set up to review the NPA decision arrived at the same conclusion as the Adv Mpshe.

Adv Pikoli said that he had raised many issues and that the DSO had been asked to be part of the investigation into the Brett Kebble murder and that subsequent evidence pointed towards the National Police Commissioner being involved in alleged criminal activities. He had refused to resign when the President asked him to do so as it would not have been voluntary.

He was not a security expert, but had significant exposure to such to fathom the importance thereof and that national security should never be used to protect individuals where overwhelming evidence suggested that a criminal investigation would be prudent. He said that the Oath of his Office placed great emphasis on the application of the laws of the Republic and that he had shown great resolve as it he tried to avoid the very scenario playing itself out at the moment. He had always sought to conduct his work in a professional manner by showing no fear nor favour and that a settlement had been discussed, but refused to disclose particular details.

Adv Pikoli noted that the NPA Act did allow the DSO to call in experts to assist with investigations, just as any other government security agency. A rigid vetting process had always been followed when the DSO made use of experts and/or consultants. An agreement had been reached that would prevent those individuals that did not have top security clearance having access to top secret information. During the search and seizure operation at the Union Buildings, the independent experts had been supervised by both the National Intelligence Agency (NIA) and the Presidency and all copies of the material had been provided to the NIA and the Presidency.

Adv Pikoli said that executive influence over the judiciary should be guarded against as it could ultimately lead to the erosion of the independence of the judiciary. The Constitutional Court judgement in the Yengeni case as well as the recent Supreme Court of Appeals judgement had been examples of this. This trend was currently a top priority of the International Association of Prosecutors.

Mr C Burgess (ANC) said that Adv Pikoli had alleged that the Ginwala enquiry had been biased towards him, but he failed to understand why Adv Pikoli did not discard the Browse Mole Report when he realised that it contained lies. Why had the Report been passed onto the NIA and the South African Secret Service (SASS)? He found it unacceptable that a top-secret document had been leaked to the media.

Mr R Tau (ANC, Eastern Cape) said that Adv Pikoli had stated that he understood issues of national security in the execution of his NDPP responsibilities. He asked whether he had taken the initiative to inform the President on any matter that presented a threat to national security. He added that Adv Pikoli had drawn the Committee's attention to the Harms judgement (overturning Judge Nicholson's Zuma ruling). However, he had failed to draw attention to the parallels between the executive and the judiciary in relation to the comments made by Judge Harms. He said that a healthy relationship between state institutions and the executive was very important.

Mr Y Carrim (ANC) said that the Committee did not question Adv Pikoli's integrity or the good work he had done, but to what extent he had compromised national security, as alleged by the President and to draw lessons from what had happened and to provide clarity on the status of the NDPP and the Justice Minister. He stressed the importance of judicial independence. If issues of national security arose during a criminal investigation then Adv Pikoli had to take appropriate steps to prevent the compromise of national security. He added that the thrust of Adv Pikoli's submission made very few concessions and made him appear flawless. He wondered whether the whole saga could have been averted if Adv Pikoli had admitted to his inadequacies.

Mr Carrim stated that the Ginwala Commission might have tried to protect the President and the Justice Minister, but that Adv Pikoli's argument had not been a sustained one. The Committee would look at Adv Pikoli's suitability and not the accuracy of certain claims or comments. He questioned the actions of Adv Pikoli when he filed the preliminary Browse Mole Report and asked whether there had been any specific reason why the Report had not been presented to the Justice Minister.

Mr B Khompela (ANC) said that the Ginwala Report had concluded that Adv Pikoli did not fully understand the politically sensitive environment he had been working in and that the independence of the judiciary should not be considered as absolute and that intervention could not be seen as interference. He added that Adv Pikoli lacked the capability to fully understand what had been meant by community interest as well as national security and that the NPA operated within the country's political environment.

Mr Delport objected to the comments made Mr Khompela about the independence of the judiciary and asked the Co-Chairs to reprimand him.

Mr Monareng noted that his Co-Chairperson had already commented on the matter.

Mr Joubert (DA) said that the President had acknowledged that Adv Pikoli's professional conduct had not been in question when he relieved him of his duties. He failed to understand why Adv Pikoli had been dismissed as he had dealt with the Selebi affair in a very just manner. In light of this, he asked whether he knew what "he had really done wrong" that warranted his dismissal.

Ms F Mazibuko (ANC, Free State) asked if Adv Pikoli believed that he had the experience and attributes to fulfil his NDPP role and what he considered as the necessary attributes for a person that dealt with national security issues.

Adv Pikoli replied that he had been of the opinion that integrity and trust formed the basis for any NDPP and that public servants had a duty to conduct themselves in a professional manner at all times so as not to erode the public's confidence in their abilities. He had always strived to do his job. He had always been prepared to learn from his mistakes. It was human to defend oneself when one had been wronged. He had always welcomed constructive criticism against him and the NPA, but he would not allow the NPA to be scandalised.

He found it difficult to respond to Mr Khompela's question. Through discussions it had always been maintained that the NPA operated within a particular political environment, coupled with close public scrutiny. He differed with Mr Khompela as the relevance and independence of the NPA had been guaranteed in the Constitution. Interference in the judiciary should not be tolerated. He added that he never had any intention to mislead the President.

Adv Pikoli stressed that whenever national security concerns arose during his tenure, he always showed the highest regard for national security. It would have been wrong to shelve the investigation of Jackie Selebi as it had been in the public interest to do so, given the allegation of his being involved with criminal network bosses. He stated that the dichotomy had not only been about how right a person had been, but also about doing the right thing.

The Ginwala Report did not consider all of the evidence and that he found it strange that it did not even mention nor reprimanded Mbeki and Mabandla in its findings. If Adv Mokotedi Mpshe had cancelled the warrant of arrest for Jackie Selebi, after the first judge had refused to sign it, then it would have made a mockery of the independence of the judiciary. He said that Adv Mpshe had received a visit from the Justice DG who had presented a cancellation order for the arrest warrant, but that none of this evidence had been included in the final Report.

He said that a decision had been taken to investigate the criminal activities that had been mentioned in the Browse Mole Report and it would have been wrong to destroy it just because it contained some inaccuracies. After he had read the Report, he called a meeting with the DG of SASS as SASS had exercised responsibility over foreign intelligence. The DG of NIA had also been present at the first meeting where Adv Pikoli had provided them both with copes of the Report. The DG of SASS said that they had received the same information and that the onus had been on the intelligence agencies to inform their respective political heads as well as the President about what they had learned. Then President Mbeki said that he believed that 80% of the Report was true. The Justice Minister had expressed on several occasions her happiness at not having been informed of the Report. Adv Pikoli stated that the Justice Minister also said that she had been happy to learn that he had protected her.

If the NPA was to be blamed for the leakage of the Browse Mole Report, then an investigation had to be launched to determine who had been responsible as the NPA did not tolerate such behaviour. He called on the Committee to be rational as both the NIA and SASS received copies.

Adv Pikoli also slammed the Nicholson judgement saying that the judge had overstepped the limits of his duty as a judge. The Constitution placed final responsibility in the Justice Minister and the NPA Act outlined the role of the Minister. He said that he had had a very close and cordial working relationship with the Justice Minister and had always shared relevant information and or documentation with the Minister. Adv Pikoli stated that there had been no breakdown in the relationship between the Justice Minister and himself as claimed by the Presidency, a claim that the Justice Minister had never refuted.

He added that his copy of the Browse Mole Report had vanished from his office and that it could not be presented to the Ginwala Commission when a request had been made.

On the issue of the assassination plot against the Malawian President, the assistance that the NPA had provided to the Malawian NDPP had been of a legal nature and at no time had intelligence been discussed. The request had been sent to the Justice DG who as the central authority had to grant permission. The DG had processed the request and sent it to the Justice Minister to familiarise herself with the request. He noted that the Justice Minister had even sent a note of thanks to the NPA for the manner in which the request had been dealt with.

Ms De Lille said that Adv Pikoli should provide the names of the Presidency legal representatives who had blatantly lied about the ‘one week/two week ‘ meeting that had taken place between Pikoli and Mbeki. She said that Rev Chikane should be called to appear before the Committee as he had been responsible for the immediate convening of the NSC as well as being the person that brought up the ‘national security' issues.

Mr Pikoli replied that the one week/two week issue had come up during cross-examination at the Ginwala Commission and that the Commission had accepted his version that there had been such a meeting where the then President Mbeki made the request. He said that when he left the Union Buildings, he thought that Rev Chikane would convene the NSC, where he would have made a submission, but he never did.

He added that the DSO had not been allowed to gather intelligence and that since the Khampepe Commission's findings, the DSO had been required to attend intelligence meetings, especially on issues of crime.

Ms B Dlulane (ANC) asked if there was any law that prevented the NDPP from consulting his political heads and then the DG. Also did the NPA have a strategy that included the media?

Mr A Moseki (ANC,North West) asked if Adv Pikoli had taken any disciplinary measures against the drafter of the Browse Mole Report? Further, had he informed the President prior to or after the warrant of arrest had been requested.

Adv Pikoli replied that according to the law, intelligence matters had to be directed to the relevant intelligence agencies and not the political heads.

He added that the DSO had never had any strategy that included the media. On the day of the search and seizure operation at Jacob Zuma's house, Mo Shaik had contacted the media and had called a radio station. He had arrived at the NPA Offices in the early hours of the morning to brief the investigation team and stressed that they had to conduct themselves in a professional manner at all times.

He said that the Committee had been very silent on the actions of the SAPS that had continued to obstruct a lawful investigation into criminal activities. He had yet to see Members condemn the actions of the SAPS.

Mr Monareng thanked Mr Pikoli for his submission and said he was welcome to attend the submission by the Presidency.

Kgoshi Mokoena noted that the new Minister of Justice, Mr Enver Surty, would lead the delegation from the Presidency and if necessary, the Committee would call Rev Chikane to clarify certain issues.

Meeting adjourned.

Source: the Parliamentary Monitoring Group, Cape Town (see here)