Pikoli dismissal sets a dangerous precedent

While parliament still has to verify the factors justifying National Prosecuting Authority head Vusi Pikoli’s dismissal and thereafter approve the same, there can be little doubt that that is simply a formality which will be overcome shortly. The true impact of president Motlanthe’s decision to ignore the recommendations of the Ginwala Commission may however endure for a lot longer.

In order to explain the above I have set out the basis for the enquiry, its findings and the reasons being given by Motlanthe for his decision. Unfortunately this is a fairly lengthy exercise so if you are easily bored bail out now.

Why the Commission?

On September 24 2007 president Mbeki suspended Pikoli who was head of the NPA.

Terms of reference

“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.”

*It is important that you are aware of the nature of the allegations being levelled at Pikoli in terms of the “terms of reference”. These are the issues he has to respond to at the enquiry.

*You could put them into two lots ie read 2.1 and 2.2 without their accompanying subsections with a catch all; “and such other matters as may relate to the fitness and propriety of the National Director to hold office.”, at the end. In essence that he is not a fit and proper person and his relationship with the Minister of Justice Mabandla had broken down.

National Prosecuting Authority Act 32 of 1998 (“the
Act”)

The Act stipulates that the head of the NPA can only be dismissed if one or more of the following four factors set out in Section 12(6)(a)of the Act are objectively present: a) misconduct, b) incapacity, c) continued ill health, or d) failing to be a fit and proper person.

Accordingly the only ground upon which Pikoli could be dismissed and which is cited in the terms of reference is d).

Section 9(1)(b) of the Act says that in order to determine whether someone is “a fit and proper person” to hold office as NDPP, due regard must be had to his “experience, conscientiousness and integrity”.

Nature of Enquiry

The ACT is not specific on the procedures to be followed in holding the enquiry and accordingly these were set by the Commission’s Chairperson Frene Ginwala.

Both parties were called upon to make written submissions, which they duly did. Ginwala thereafter concluded that there was a dispute of fact on the papers and referred the matter to oral evidence.

The hearing was conducted over 11 days from May to August 2008.

There were seven witnesses followed by closing arguments by both sides.

The decision of Ginwala was then furnished to President Motlanthe.

Decision of Ginwala

This is set out in paragraphs 11-18 of the Executive Summary:

What is clear is that with regard to the issue of Pikoli being a fit and proper person as required by the Act, the decision is unequivocal – Pikoli is a man of unimpeachable and unquestionable integrity.

With regard to his relationship with Mabandla the Minister of Justice: for reasons best known to her, she elected not to testify, despite being the chief complainant. The court was duly satisfied that this charge was without merit.

I will deal with the issues of “national security” and “public interest” below save to state that in terms of the requirements of the Act the commission cleared Pikoli and there are no grounds in the Act upon which the president could call for Pikoli’s dismissal.

The fact that Motlanthe suggests that Ginwala was not an arbitration binding him to its decision does not detract from the fact that there is a statute setting out the grounds upon which Pikoli could be dismissed and Ginwala has confirmed that they are not presently in existence.

Function of Parliament

As the primary oversight body parliament has to verify that the grounds for dismissal as set out in 12(6)(a)of the Act are in fact present. If regard is had to Ginwala they most certainly are not.

Once satisfied thereof attend to approve the dismissal by the president.

National security and in the public interest

If you go back to the “terms of reference” you will note that it is alleged that Pikoli failed when exercising his discretion to prosecute offenders, to have sufficient regard to the nature and extent of the threat posed by organised crime to the national security of the Republic.

Moreover it is alleged that when he took 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, he failed to have 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.

In terms of the granting of immunity the matter was not pursued with much vigor and Pikoli was cleared.

In terms of the issue of national security, Section 198 of the Constitution provides:

“198. Governing principles

The following principles govern national security in the Republic:

a. National security must reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life.
b. *1 The resolve to live in peace and harmony precludes any South African citizen from participating in armed conflict, nationally or internationally, except as provided for in terms of the Constitution or national legislation.
c. National security must be pursued in compliance with the law, including international law.
d. National security is subject to the authority of Parliament and the national executive.”

What is clear from the above is that there is sufficient scope to hang anyone out to dry on failing to adhere to Section 198 if you wanted to. The items which Ginwala took issue with (see executive summary in “Decision of Ginwala” above) do not constitute grounds for dismissal of Pikoli particularly if one has regard to the circumstances in which they happened.

In this regard see reference to the full Ginwala report:

via Dispatch

Motlanthe decision

“In the end, I was required as President of the Republic to make a final decision in terms of section 12(6) (a) of the NPA Act on whether or not Advocate Pikoli was fit and proper to continue to hold the office of the National Director of Public Prosecutions. Adv Pikoli’s professional competence is not in question. However, it should be noted that the requisite skills would, necessarily, include professional competence as well as those outlined by the enquiry, in particular, appreciation for and sensitivity to matters of national security.” (President Motlanthe)

via Moneyweb

Why Pikoli is a dangerous precedent to set

One of the issues raised in Judge Nicholson’s decision in Pietermaritzburg was the separation of powers between the executive and the NPA. While the Supreme Court of Appeal may come down on the judge for delving too deeply into the political debate, that won’t detract from this issue. One of the checks and balances in our democracy is the fact that the executive must not interfere in the decision making process of the NPA.

In terms of legislation, as set out above, there are grounds for dismissing the head of the NPA (NDPP). Ginwala, while not being binding on the president, clearly states that there are no grounds in terms of the act to justify dismissal. While there may be other disciplinary measures appropriate, as things stand, dismissal is not one of them.

What the president’s decision does is suggest to the public that once the government has made up its mind to get rid of someone or something then that is precisely what is going to happen. It matters not whether we have a Kamphepe report or a Ginwala report; the decision has been made.

In terms of the prosecutors and police of South Africa it suggests that they cannot proceed without fear or favour because in the event of their proceeding against the wrong party they will be sacked. Moreover that the safeguards provided by legislation are useless against an executive who has decided your fate.

Section 198 is so wide as to be meaningless in the context of this issue. In using it to dismiss Pikoli the president is basically demonstrating that regardless of Section 12(6)(a)of the Act and Pikoli’s conduct in terms thereof, the executive can still remove the NDPP.

This will lead to a confluence between the organs of state and the executive where bodies such as the NPA see themselves as accountable to the president where the opposite is in fact the case. Where no right thinking policeman would dare charge a powerful politician knowing that legislation can easily be overcome and his position untenable.

The same would also apply to other organs of state.

In addition, where the government convenes an enquiry of this magnitude and thereafter overrules its findings in favour of what appears to be politically expedient, even if in reality this is not the case, then faith in the system is going to be compromised. It is better not to have these commissions than to ignore their recommendations.

Where you do perception of wrongdoing will always trump the reality, whatever that may be, and perception is everything.