President Motlanthe's Decision on Ginwala Enquiry Report into Mr Vusi Pikoli’s Fitness or Otherwise to Hold Office
08 Dec 2008
President Kgalema Motlanthe briefed the media on his decision as to whether Adv Vusi Pikoli was fit to hold office as National Director of Public Prosecutions. After discussing the findings of the Ginwala Report and the rationale for the decision, he reported that acting in terms of sub-section 12(6)(a)(iv) of the National Prosecuting Authority Act, he had come to the determination that Adv Vusi Pikoli should be relieved of his responsibility as the country’s National Director of Public Prosecutions.
Q: A journalist noted that most of the allegations made by government against Adv Pikoli were disproved by the enquiry, and the President had only referred to the lack of appreciation of national security issues. He asked if there was consideration on the part of the President for any remedial efforts instead of firing Adv Pikoli.
A: The President responded that the full report, which would be made available soon would indicate that remedial measures were not provided for in law. When his predecessor, Thabo Mbeki, had an interaction with Adv Pikoli, he made the determination for the suspension according to what the law prescribed. The law stipulated that an enquiry must be established to determine whether to restore or release the National Director of Public Prosecutions. This finding would then be forwarded to the President for consideration. The President would then forward his decision to Parliament. The law did not provide for the President to restore or release the National Director of Public Prosecutions. Only Parliament had the power to overturn or uphold the decision by the President.
Q: A journalist asked the President to elaborate on what he meant by referring the matter of the “DG of the Department of Justice and Constitutional Development” to the Minister and acting according to the law.
A: The President responded that the matter of the conduct of the Director General of Justice had to be referred to the Minister, as a line function, to follow up on those issues. They could not ignore the honesty of the Director General being called into question.
Q: A journalist asked if it was the considered view of the President that the actions of Adv Pikoli were a threat to national security.
A: The President responded that the report indicated that Adv Pikoli was not sensitive to the matter of national security. Even when asked by the former President for two weeks until the warrants were acted upon, Adv Pikoli had arbitrarily allowed one week. When asked in the enquiry, if he would have responded differently, given the chance, he said he would not have. This was serious as the role of the National Director of Public Prosecutions was very important. For this reason, the enquiry found that, beyond the qualifications, the National Director General of Public Prosecutions needed an appreciation of national security matters. He was not saying that Adv Pikoli was a threat to national security but could have taken steps in certain cases. For example, the Browse Mole process could have been stopped much earlier.
Q: A journalist queried the extent of the political thought behind the decision and the related mention of Adv Pikoli's decisions regarding Jacob Zuma.
A: The President responded that the decision was taken after hearing Adv Pikoli's representations, especially those on the negative findings of the Ginwala Report. This was truly his own decision, given the facts.
Q: A journalist commented that it had been his understanding, upon reading the Report, that the recommendation was that Adv Pikoli should stay on as National Director of Public Prosecutions. This was now overruled and the recommendation to Parliament was that Adv Pikoli should go. He asked if it would not be difficult for the President to motivate for the decision as it contradicted the Ginwala Report.
A: The President responded that the enquiry was provided for in the law but the decision was to be made by the President. The purpose of the enquiry was to provide the President with the requisite information to make an informed decision. Once the full report was read, the media would appreciate that the recommendation made by the report was illogical if one took into account Adv Pikoli's own representations. He stated that he would not have difficulty in providing Parliament with cogent reasons for the decision.
Q: A journalist asked if the President intended for Adv Simelane (Director General: Department of Justice and Constitutional Development) to be fired.
A: The President responded that there should be due process and he could not pre-empt the actions of the Minister on the matter of the Director General.
Q: President Motlanthe was asked to comment on the future of the National Prosecuting Authority (NPA) and whether Adv Mokotedi Mpshe would remain Acting National Director of Public Prosecutions.
Q: A journalist referred to the views expressed in the Judge Chris Nicholson judgement that the Executive not meddle in the business of the NPA. That matter was currently before the NPA. She asked if that would have any bearing on the President’s motivation to Parliament.
Q: A journalist noted the 30 day time frame and asked when they could expect Parliament to deal with this issue and if the report would be forwarded to the Portfolio Committee on Justice and Constitutional Development, regarding the review of the Director General's conduct.
A: The President responded that the reasons would be forwarded to Parliament within 30 days as that was the legislative requirement, but it could be done by the end of the week. The full report would be forwarded to the Speaker of the National Assembly, as well as the Chairperson of the National Council of Provinces and it was left to them to forward the report to the relevant Portfolio Committees to deal with.
Q: A journalist asked the President to state categorically that he had not acted upon any political pressure whatsoever and that the decisions made had been on his own determination.
A: The President responded that it really was his own decision and there was no other influence on him. He stood by it and had taken this decision with a clear conscience.
Q: A journalist noted that the President was asking for Adv Pikoli to be relieved of his position on grounds that were not part of the original complaint by government and queried the legal basis for the decision. He asked if this decision did not open a big avenue for Adv Pikoli to take the government to court. The report made it clear that this reason was not part of the original complaint and so Adv Pikoli did not have an opportunity to respond to the matter in the forum given to him.
A: The President responded that there was only one prescribed manner to remove the National Director of Public Prosecutions from office, as he had previously explained. It was important to have an enquiry first as this gave Parliament the benefit of the facts. The enquiry was not an arbitration. It allowed the parties to give evidence and it compiled a report that was merely meant to help the President to arrive at a decision. Any legal challenges would have to be made after Parliament had made their decision.
Q: A journalist asked what the future of the National Police Commissioner, Jackie Selebi, would be - in relation to the findings of the report.
A: The President stated that the issue of the National Police Commissioner was raised by Adv Pikoli as a reason for his suspension. The report found otherwise - that there was no basis for that allegation whatsoever.
The media briefing was concluded.
ADDRESS TO THE NATION BY PRESIDENT KGALEMA MOTLANTHE ON THE REMOVAL OF ADVOCATE VP PIKOLI FROM OFFICE AS NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
08 December 2008
Fellow South Africans,
As is commonly known my immediate predecessor, former President Thabo Mbeki, suspended the National Director of Public Prosecutions, Advocate Vusi Pikoli in September 2007, in accordance with the provisions of the National Prosecuting Authority (NPA) Act.
Subsequent to the suspension, Dr Frene Ginwala was appointed in terms of the provisions of the NPA Act, to make enquiry into certain specified issues, in particular:
“[t]he fitness of Advocate V Pikoli to hold the office of National Director of Public Prosecutions.”
The Report of the Enquiry was presented to me by the Chairperson, Dr F Ginwala on the 4th November, 2008. The Enquiry made certain findings and accompanying recommendations. Among other things it found that:
· the basis advanced by Government for the suspension of Adv Pikoli had not been established through the evidence submitted to the Enquiry;
· in the course of the Enquiry some deficiencies in the capacity and understanding of Adv Pikoli to fully execute the range of responsibilities attached to the office of the NDPP became apparent – more specifically, the lack of understanding on his part of his responsibility to operate within a strict security environment and to ensure that the NPA, and the DSO, operate in a manner that takes into account the community interest and does not compromise national security; and
· Advocate Pikoli did not fully appreciate the sensitivities of the political environment in which the NPA operates, and his responsibility to manage this environment.
More importantly, the Enquiry opined that, had the evidence tendered by the State – pertaining to the sensitive environment in which the NPA operates – been given as the reason for the suspension, she would not have waivered in finding that the reason for the suspension was valid.
The Enquiry consequently recommended, among other things, that Advocate Pikoli “be restored to the office of the NDPP”.
In considering the report, inclusive of its findings and recommendations, I have taken cognisance of the fact that the Enquiry appears to have confined itself to the determination of whether the communicated reason for the suspension of Advocate Pikoli was legitimate rather than whether he was fit to hold the office of National Director of Public Prosecutions as was stipulated in the terms of reference.
It was therefore apparent to me that in order to come to a decision on the recommendations, I could not do so without having regard to the remarks contained in the Report, in particular the adverse findings made against Advocate Pikoli. The gravity of these findings has to be viewed against the qualities which the Enquiry deems necessary for one holding the office of NDPP. The Report asserts that:
“…the person must possess an understanding of the responsibilities of such an office. There must be an appreciation of the significance of the role a prosecuting authority plays in a constitutional democracy, the moral authority that the prosecuting authority must enjoy and the public confidence that must repose in the decisions of such an authority. To that must be added an appreciation for and sensitivity to matters of national security.”
In view of these remarks, I invited Advocate Pikoli to make such written representations as he may deem fit, especially with respect to the adverse findings made against him.
In his representations, Advocate Pikoli embraced those findings that were in his favour and challenged those that were against him. More significantly, I formed the view that Advocate Pikoli’s representations exhibited a failure on his part to acknowledge the serious deficiencies identified by the Enquiry.
Mindful of all these factors, it became clear to me that I could not come to a decision without taking into account the entirety of the findings of the Enquiry, including in particular the observation that the suspension would have been found valid if the totality of the evidence given by the State had been the basis for the suspension.
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.
Furthermore I have had regard to the provisions of the constitution.
In this regard, acting in terms of sections 12(6)(a)(iv) of the National Prosecuting Authority Act, I have come to the determination that Advocate Pikoli should be relieved of his responsibility as the country’s National Director of Public Prosecutions.
As stipulated in the National Prosecuting Authority Act, I will communicate my decision and all relevant background information to Parliament within thirty (30) days.
Our government is mindful of the critical role that the National Prosecuting Authority plays in the firmament of institutions that are responsible for the prevention and combating of crime, and therefore for ensuring improving conditions of safety and security for all who reside in our country.
I therefore wish to assure you of the unbridled commitment of the government to ensure that the NPA is able to institute criminal proceedings on behalf of the state, to carry out any necessary functions incidental to this core mandate as well as to exercise its overall functions without fear, favour or prejudice.
I have also noted the observations of the enquiry with regard to the issue of the character and conduct of the DG of the Department of Justice and Constitutional Development, and have requested the Minister of Justice and Constitutional Development to follow the matter up in line with the Public Service Act and relevant regulations.
I am confident that the lessons that we have all learnt from this experience will stand us in good stead as we intensify the war against crime and corruption.
I Thank You!
ISSUED BY THE PRESIDENCY ON 8 DECEMBER 2008
THE UNION BUILDINGS
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