The Pikoli gambit

Advocate Vusi Pikoli was suspended from office as the National Director of Public Prosecutions by former president Thabo Mbeki on 23rd September 2007. Following this, on 28 September 2007, an inquiry, chaired by Dr F Ginwala was established in terms of section 12(6)(a) of the National Prosecuting Authority Act No 32 of 1998 (the Act), with terms of reference (dated 3 October 2007) to determine his fitness to hold the office of national director (see link for full terms of reference).

The Pikoli decision, which was taken by Mbeki prior to the ANC’s national conference held in Polokwane in December 2007, could have a major impact on South Africa’s political landscape going forward as is set out below. According to Pikoli, Mbeki had ulterior motives in suspending him ie to protect national police commissioner Jackie Selebi from prosecution.

The ANC at Polokwane thereafter appointed Jacob Zuma as the party president. Within days he was charged by the acting National Director of Public Prosecutions (NDPP), Mokotedi Mpshe. This led to the build-up to Zuma’s trial, which has included the application before Judge Chris Nicholson in the Pietermaritzburg High Court wherein (simplistically — see articles on site) it was held that the National Prosecuting Authority (NPA) had to afford Zuma the opportunity to make representations before charging him.

This was overturned by a full bench of the Supreme Court of Appeals which finds the Zuma team applying for leave to appeal from the Constitutional Court against the decision. In addition, and vitally, making representations to the NPA in order to have the charges stayed, withdrawn or some other accommodation reached.

Accordingly these are two different points of attack, namely leave to appeal to the Constitutional Court and representations to the NPA. In terms of the latter, Pikoli’s position is being considered as pivotal by certain stakeholders. As may be seen from the second link above it is Pikoli’s contention — in his papers given in support of an urgent application to interdict the president from appointing his successor pending the decision to sack him being reviewed — that President Kgalema Motlanthe and the ANC leadership have an ulterior motive in his sacking; that they would prefer to deal with someone of their own choosing who would be more sympathetic to Zuma.

Though Zuma’s lawyers will be making oral representations on Friday, this too will be an ongoing process with the NPA needing time to assess the same and decide on the way forward in light thereof. If the court grants Pikoli urgent interim relief and orders that the decision of a successor be held over until Pikoli’s matter is decided, then this would avoid a potentially “friendly” appointment being made in respect of the new NPA head.

This would mean the same team, which has continued with the prosecution against Zuma, charged him and continues to pursue the matter at full steam, remains in place.

This requires looking into Pikoli’s dismissal. As was noted in the Ginwala report, there was no basis at law upon which the president could rely in taking this decision. Section 12(6) of the National Prosecuting Authority Act No 32 of 1998 sets out the grounds for a dismissal which Ginwala confirmed were not present.

When the matter was referred to Parliament for oversight and confirmation, the ad hoc committee produced a report which, with the most humble respect, took the matter no further.

As law professor Pierre de Vos states:

“This is a sham decision and fortunately for Pikoli and his legal team the report by the ad hoc committee does not do a good job of hiding this. Section 12(6) of the NPA Act makes clear that the NDPP can only be removed for one of four objectively determinable reasons, one being that he is no longer a fit and proper person to hold the office concerned. A decision by the president to fire Pikoli can therefore only be legally valid if it has been determined — looking at all the facts — that Pikoli is indeed no longer a fit and proper person. This is not a decision that can be taken on the basis of political considerations. In order to be legally valid, a clear determination has to be made on the facts and these facts must be shown to demonstrate that the NDPP is no longer a fit and proper person.

“This would require the president and then Parliament (1) to define what constitutes a fit and proper person and (2) then to show that the NDPP has demonstrated through his actions that he no longer meets the criteria for a fit and proper person. A clear causal link must be established between the criteria set out in (1) and the facts that show the incumbent no longer meets those criteria. Otherwise the decision would be ultra vires and thus invalid and could be overturned by a court of law.

“Unfortunately, the report utterly fails to define the criteria for a fit and proper person and thus falls at the first hurdle. It is thus my contention that the decision of the ANC majority is illegal and could very well be overturned. Apart from the breathtaking double standard of the ANC majority, who often talks about the right to be presumed innocent until proven guilty but failed to even pretend to consider such niceties in this case, the report fails to do what the Act requires it to do.”

What is clear, from the suspension (albeit by Mbeki), from Ginwala, Motlanthe dismissing Pikoli and the report of the ad hoc committee is that despite cogent legal and political reasons for Pikoli not to be dismissed, the decision was taken to get rid of him and nothing will alter that unless the parties are compelled to do so.

Moreover a dangerous precedent is being set in that powerful figures, vital to upholding the Constitution and maintaining law and order — such as Pikoli — can be removed from office, in terms of open-ended concepts like “national security” where other avenues are closed. Even if regard is had to the statutory definition of national security it is so broad and vague that almost anything or anyone could be considered a threat and removed if a decision to get rid of has been made.

Accordingly the outcome of Pikoli’s fate is going to be an important indicator of not only how far our democracy has come but also the lengths that we are prepared to go in protecting the checks and balances in our system.

Pikoli is a decent man who does not deserve to be sacrificed as a pawn in a political gambit that might well result in the players being forced into a damaging stalemate rather than a clear winner ready and able to govern this country.