Justice Minister & Presidency's Director General submissions on Pikoli matter, Ad Hoc Joint Committee to Consider Matters in terms of Section 12 of National Prosecuting Authority Act (Pikoli) , January 21 2009
Chairperson:: Mr. O Monareng (ANC) and Mr. Kgoshi (ANC)
Summary:
The Director-General in the Presidency, Reverend Frank Chikane, and Minister of Justice, Enver Surty, appeared before the Committee as deliberations continued on President Kgalema Mothlanthe's decision to remove National Director of Public Prosecutions, Advocate Vusi Pikoli, from office.
Minister Surty explained that his role was to provide an opinion on the nature of the relationship between the Justice Minister and the NDPP and not as might have been implied in reports by the media, to represent the Presidency.
The two were questioned on a number of issues pertaining to the decision to remove Advocate Vusi Pikoli from his position as NDPP. Some of the Committee's members expressed their displeasure over the absence of former Justice Minister, Ms Brigitte Mabandla, who they felt should have been present to answer questions.
Reverend Chikane explained the events leading to the suspension of Adv Pikoli by the former President, Thabo Mbeki. He stated that the Directorate of Special Operations raid on the Union Buildings had been authorised by the NDPP without any regard to potential risks to national security. The warrants had also been executed despite a request from the Presidency for a two-week delay in the execution of the warrants for search and seizure. This request had been made with the intention of allowing the Presidency to make appropriate preparations for the arrest of a Police Commissioner as well as determining a procedure for the handling of sensitive documents housed in defence and intelligence headquarters.
Reverend Chikane explained that the raids conducted on the Union Buildings and the former Deputy President's residence had created a risk of national instability. The Presidency had, therefore, been against the manner in which the NDPP had chosen to do this as opposed to whether or not it had to be done.
Committee members put a number of questions to the Director-General. Dr Delport (DA) in particular, accused the Presidency of inconsistency. They pointed out that an earlier reason for Mr Pikoli's suspension had been based on the NDPP's alleged mishandling of a plea bargain and an irretrievable break-down of the relationship between the NDPP and the Minister of Justice.
A new ground for the suspension now appeared to have been introduced which said that Adv Pikoli was not a fit and proper person to hold the office of NDPP as a result of his lack of sensitivity to issues of national security.
The Justice Minister responded that the Constitution required collaboration between the NDPP and the Minister. He described the relationship as a dynamic and sustained one and that it was critical for a synergy to exist between the NDPP and the Minister. ANC members appealed to opposition members to avoid insinuating a political attack against Advocate Pikoli as the reason for his removal.
Minutes:
Questions put to Minister of Justice and Deputy General in the Office of the Presidency
At the onset of the day's deliberations, Dr Delport (DA) began by questioning the absence of the former Justice Minister, Ms Brigitte Mabandla. He was not sure how the current Minister would assist in the enquiry since he was not privy to a number of issues that were a direct concern of the former Minister.
Dr Delport (DA) and Advocate Joubert (DA) asked for clarity on the reasons for Mr Pikoli's suspension. Both members accused the Presidency of inconsistency. They pointed out that earlier reasons for Mr Pikoli's suspension had been based on the NDPP's alleged mishandling of a plea bargain and an irretrievable breakdown of the relationship between the NDPP and the Minister of Justice. A new ground for the suspension now appeared to have been introduced which said that Mr Pikoli was not a fit and proper person to hold the office of NDPP as a result of his lack of sensitivity to issues of national security.
Ms Mazibuko (ANC) asked the Presidency if any opportunity had been afforded to Advocate Pikoli to respond to the suspension. She also wanted clarity on the issue of security concerns and asked if matters of national security could supersede criminal conduct. She commented that the credibility of the NPA had also been at stake in the decision of whether or not to prosecute the Commissioner of Police.
Mr Swart (ACDP) asked the Presidency whether the principle of prosecutorial independence and the need to guarantee security of tenure had been upheld in the decision to remove Advocate Pikoli from office. He submitted that national security was not one of the reasons that could be given as a basis for the removal of the NDPP in terms of the law.
Mr W Douglas (ACDP) accused former President, Thabo Mbeki, of abusing his power and suggested that the Presidency was trying to validate this abuse by persisting in the decision.
Mr S Simmons (National Alliance) berated the Presidency for failing to clarify the meaning of national security. On the one hand, the exposure of the country's law enforcement agencies to organised crime was a threat to national security. However it appeared that the Presidency had other ideas and should therefore clarify the meaning of national security.
Minister of Justice's submission
Minister Enver Surty contended that the matter of Advocate Pikoli's removal from office must be looked at holistically considering both the Ginwala Report and matters of national security. It was important to consider matters of collaboration between the Department of Justice and the NDPP. The Ginwala Commission had stopped short of the conclusion arrived at by the Presidency, only because this had not been included in the terms of reference that were rather too narrow. He explained that his role was limited to a legal interpretation of the relationship between the Minister and the NDPP. He asked the Committee to consider the Ginwala Report in a more holistic fashion and urged members not to look at things selectively. It was critical for a synergy between the NDPP and Minister in the context of the relationship between national security issues and criminal prosecutions that involved the handling of sensitive documents. There were two constitutional imperatives to be considered as opposed to one. Firstly there was the constitutional principle of collaboration and then prosecutorial independence. It was necessary to balance these two imperatives through a dynamic and sustainable relationship.
Mr Surty conceded that the manner in which Ms Mabandla's letter had been written was unfortunate and lent itself to an interpretation of interference. He argued that the manner of execution of the decision had not actually hampered or impeded the prosecution of the Deputy Commissioner. Furthermore, the Ginwala Report had concluded that this was not interference. The letter was an unfortunate error in communication. The reasons for Advocate Pikoli's dismissal were not confined to the Ginwala Commission's terms of reference. The Presidency was not bound to a particular finding and had made a decision on the basis of broader national security concerns as opposed to the limited scope of the Ginwala Commission's terms of reference.
Director-General in the Presidency submission
Reverend Chikane narrated the events leading to the suspension of Mr Pikoli by the former President, Thabo Mbeki. He explained that the President's decision had become necessary when national security concerns arose as a result of the NDPP's conduct of a search and seizure at the Union Buildings in Pretoria. The point at which it had become necessary to suspend the NDPP had been on the national security questions, which were critical. The issue of the vetting of Officers in the Directorate of Special Operations (DSO) had been raised and he himself had ascertained that many of them were not vetted. There had been the entering of the Union Buildings, a defence and intelligence headquarters and a national security establishment, as well as the raid on former Deputy President Jacob Zuma's residence. Such persons had posed serious national security risks. In discussions between the President and the NDPP, the issue of allowing the DSO access to crime intelligence source files had been discussed.
The Presidency had also considered the tension between the DSO and SAPS and pointed out that the NDPP needed assistance from the State President. A period of 14 days had been requested during which the President would make preparations for the arrest of a SAPS Commissioner as well as the handling of sensitive intelligence records. There was a great risk of something happening to destabilize the country. This postponement would have allowed the Presidency to make the requisite preparations for the imminent arrest of a Commissioner of Police and the institution of appropriate procedures for obtaining evidence from sensitive and highly classified government offices. The NDPP's failure to appreciate these risks was an indiscretion that negatively impacted on national security and made him an unfit and improper person to hold office. There had been no abuse of power by the Presidency. The issue had been about the way things were done and not whether they could be done or not.
Discussion
Mr G Magwanishe (ANC) referred to the issue of co-operation between SAPS and the DSO. He asked if the Presidency had taken into account the difficulties experienced by the DSO in seeking co-operation with SAPS. He also submitted that the Committee had been informed that the DSO had long before submitted its members for vetting to the National Intelligence Agency but still had not received security clearance.
Mr Kompela (ANC) expressed concern about SAPS involvement in criminal activities.
Ms De Lille (ID) submitted that the Ginwala enquiry did say that there had been interference by the Executive. She stated that the issue of Ms Mabandla's letter would be the subject of legal proceedings and would therefore be more fully canvassed in a court of law.
Dr Delport (DA) maintained that the core of the letter from the Minister suggested interference. He was also completely dissatisfied with Reverend Chikane's explanation, citing inconsistencies between the initial causes of the suspension on the basis of irretrievable breakdown of trust between the Justice Minister and the NDPP and the national security concerns now referred to.
Ms Joyce Morupa (ANC) pleaded with opposition members to stop insinuating that the ANC as a party had a vendetta against Advocate Pikoli. She submitted that Advocate Pikoli was a personal friend to many ANC members who faced great difficulty in having to go through with this enquiry.
Debate continued between members and the Presidency and the Justice Minister.
The meeting was adjourned.
Source: Parliamentary Monitoring Group, Cape Town
