Adv Pikoli, Presidency’s Director General, Justice Minister submissions: deliberations

Ad Hoc Joint Committee to Consider Matters ito Section 12 of National Prosecuting Authority Act (Pikoli)

27 January 2009
Chairperson: Mr L M Kgoshi (ANC, Limpopo) and Mr O Monareng (ANC)
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Meeting Summary

The Committee deliberated on the submissions made by Adv V Pikoli, Rev Frank Chikane and Justice  Minister Enver Surty.

The opposition parties united and accused the ANC of siding with the Executive along party lines on many issues. The IFP noted that according to a newspaper article the ANC government had already filled the position of the NDPP. It accused the ANC of constituting this Committee as mere windrow dressing. The opposition proposed that both the ANC and the opposition write their own reports on the Pikoli matter that could be tabled together. The Co-Chair dismissed the suggestion and called on all Members to participate in the process.

Opposition Members noted that the suspension letter as well as the Terms of Reference issued by the President did not correspond with one another and that it seemed as if the ANC Caucus acted in a biased manner towards Adv Pikoli. They stated that national security was never mentioned as a reason for the suspension, nor was it ever discussed at the Ginwala Commission.

The ANC slammed opposition parties and said that the suspension letter and the Terms of Reference should not be read selectively as it might create problems. The ANC noted that this was not merely about Adv Pikoli, but also about the legislation that governed the National Prosecuting Authority. They proposed that the NPA Act be reviewed to fill the loopholes as the Committee was faced with an unprecedented task. They accused Adv Pikoli of not being sensitive to national security issues and called him an ‘arrogant person’ who had defied the Commander in Chief. The ANC noted that they supported the decision by the President to axe Adv Pikoli


Meeting report

Kgoshi L M Mokoena (ANC,Limpopo) said that all political parties had made notes after listening to the submissions by the principals in the matter and that the Committee did not have a view as yet. He said that the Committee would deliberate on these submissions and whether the Committee would agree with the decision taken by the President.

He added that it was Parliament’s right not to endorse the decision by the President as the public expected Members to play a proactive role, without fear or favour. He noted that this was expected from all Members; and made a humble appeal to Members to play the ball and not the man as Members were tempted to play the man and not the ball. He said that robust debate was needed to reach a balanced decision regarding the decision made by the President.

Mr O E Monareng (ANC) said he shared the same views as Kgoshi Mokoena and called on Members to be responsible as the Constitution required that of them. He noted that Members had listened attentively to submissions made by principals and that the onus was on Members to express themselves.

Mr T Delport (DA) said that he had a dream of the Committee undergoing four days of gruelling deliberations, only for the ANC to endorse the decision by the President with the opposition voting against it. He noted that he needed at least two hours to analyse evidence from the Ginwala Commission and the submissions made by Adv Pikoli, Rev Chikane and the Minister of Justice.

He said that opposition parties proposed that the ANC wrote its own report on the submissions, with the opposition writing a single report that documented the facts and the final position on the matter.  He said that the two reports could then be debated amongst the Members and a final report that contained all of the different views, written for submission to Parliament.

He added that without a draft Members would argue in circles and that he hoped his dream did not come true, but in the event that it did, then the written report should be considered as a minority report by the Committee. He said that he would not partake in the debate if the Chairperson allowed deliberations, but would merely be an observer.

Kgoshi Mokoena replied that the suggestion that had been made by Mr Delport was not feasible as that was the job of the parliamentary researchers. He said that up until now the ANC had not expressed its view on this matter and that as the process developed the stance of the ANC would be conveyed. He implored Mr Delport to reconsider his decision as it was necessary to get all opinions. He said that Mr Delport had made a valid request, but that the onus was on Members to come up with a decision that South Africans could be proud of.

Mr Koos van der Merwe (IFP) said that his opinion was that the ANC had already taken a decision to endorse the decision by the President that Adv Pikoli was unfit to hold public office and should thus be fired. He stated that the establishment of the Committee was merely window dressing as the decision already made.

He added that the opposition was wasting its time as the ANC never considered or even included suggestions made by the opposition during previous processes. He said that according to a Cape Times article, a successor to Adv Pikoli by the name of Mr Mkize had already been appointed. He noted that the article also stated that Mr Mkize was already busy putting his team together and that this was just another illustration of the opposition playing along as fools since the decision had already been made. Mr van der Merwe said that the article also alleged that ‘Mr Mkize’ had a very bad record and had been found guilty of misconduct

Mr Bulelani Magwanishe (ANC) objected to the Co-Chairs as Mr vd Merwe had no basis to make the allegations. He said that it was improper for the ANC to comment on news leaks, since no decision on the Pikoli matter had yet been made by the ANC.

Kgoshi Mokoena called on Mr van der Merwe to stick to the deliberations and to refrain from making such remarks.

Mr van der Merwe replied that had taken part in the deliberations and that he had just commented on an article in a major newspaper. He said that he did not say that the ANC took this decision, but merely reiterated what was said in the newspaper.

Mr Magwanishe said the manner in which Mr van der Merwe acted suggested that the IFP believed that the article was true and was using it as evidence.

Mr van der Merwe said that he indeed believed that the article was true and that this would be emphasized by ANC Members who would vote in favour of the decision made by the President. He added that this would just be another example of the ANC using the opposition as fools.

Mr Monareng said that every member was entitled to their own views, but that Members had to be very careful about their statements as the public might get agitated at the thought of Parliament being a disguise. He said that if Mr van der Merwe spoke the truth then it would indeed have been useless to constitute the Committee, but that it would be unfair of the opposition to assert that the ANC disregarded the Constitution just because the ANC was flexing its muscles. He added that it was wrong of the IFP to insinuate that the Committee was a farce and a joke and said he hoped these theories were not sustained.

Mr Yunus Carrim (ANC) said that it was not only a question about whether Pikoli should be reinstated, but also on whether the legal framework within which these decisions had made was clear enough. He noted that the new Parliament should apply their minds to clarify the pitfalls in the legislation and state to what extent the Minister was acting in her legal mandate. He said that there were many things that bonded political parties to avoid these uncertainties.

He added that when the National Prosecuting Authority (NPA) Act was drafted it did not really envisage the matter before the Committee that day and he asked that the Committee report should also deal with the need of a revision of the legislation that governed the NPA.

Mr Carrim said that during the Scorpions disbandment process, the Committee report repeated verbatim what all opposition parties had suggested and that ultimately it was not about Adv Pikoli, but about issues and implications around the matter. He noted that the report should shape a particular role for Members that would allow for the discussion of the legal framework. He stated that one of the issues to discuss was whether the legal framework was useful. He said Members that participated in the NPA Act drafting process needed to ask themselves why they allowed the Minister to have final responsibility, especially Mr Delport as he was par with the NPA process.
Dr Frits van Heerden (FF+) said that he was part of the Chapter 8 process and that the well intended remarks by the opposition was absolutely discarded by the ANC and that he failed to see why the ANC always underestimated and discarded well intended suggestions made by the opposition. He noted that unfortunately there were these perceptions and that the ANC should consider suggestions by the opposition.

He added that news reports should never be taken lightly, especially on what is happening in Parliament and that there was a perception that the ANC was openly biased towards Adv Pikoli. Dr van Heerden said that he would not take part in the discussions until the final report had been tabled as he failed to see why he should be part of the deliberations.

Ms Patricia De Lille (ID) said she had listened to the debate and emphasized that there was only one Constitution which all political parties adhered to and respected. She noted that the Constitution was very clear on the separation of powers, but that history had shown that ANC Members and the Executive would always vote along party lines, regardless of the valid input the opposition had made.

She added that South Africa had an independent judiciary that could decide on separation of powers as final responsibility rested with the Minister in terms of policy and administration of justice and prevented the Minister from interfering in the process. She said that when the opposition differed with the ANC it was on a matter of principle and that if it became clear that the ANC wanted to steam roll the process and no consensus was reached then the opposition would make its own input.

Mr Steve Swart (ACDP) expressed his concern at the perception that the decision had already been taken as it would justify the remarks made by Adv Pikoli that he was under attack from the ANC. He said that the Minister of Justice was pivotal in the whole Pikoli matter, yet she never gave oral evidence to the Ginwala Commission or to the Committee.

He added that he would have liked an opportunity to interview the minister as there was a need for her to be part of the process. He said that Mr Carrim made a valid point, but disagreed with him on the centrality of Adv Pikoli as the Committee was in fact discussing his (Adv Pikoli) future. Mr Swart said that the independence of the NPA as enshrined in the Constitution; as well as what was meant by a ‘fit and proper’ person were very important issues, as the Committee had never embarked on issues like this before. He said that there might be a need to review the legislation and if the ANC dominated Committee decided to endorse the decision by the President then the matter would end up in the Courts.

Mr Monareng said that the opposition had already decided not to endorse the decision by the President as it believed that the ANC had already endorsed the decision by the President. He noted that there was a need to adhere to the Constitution, hence the relevance of the Committee. He noted that it was the first time he had experienced a united front from the opposition. He asked that the Committee continued with the business at hand.

Mr van der Merwe objected to the comments made by Mr Monareng as he served as Co- Chairperson and was not thus entitled to make comments like that. He noted that Mr Monareng should stop levelling allegations against the opposition.

Ms J Moloi-Moropa (ANC) said that it was necessary for Members to stay within the mandate given to them and that although there might be perceptions, the Parliamentary process could not be eroded. She noted that Adv Pikoli had never said that the ANC was being biased, as he talked about the silence from Members pertaining to the obstacles that had been experienced with the South African Police Service (SAPS). Ms Moropa stated that in terms of the Terms of Reference, Members had not been asked to review the actions by SAPS, but that of Pikoli.

Mr W J Le Roux (DA, Eastern Cape) said that for five years he had ‘battled’ with Kgoshi Mokoena on the track record of the ANC Parliamentary caucus in rubberstamping the decisions by the Executive. He noted that in most cases Kgoshi Mokoena had been proven wrong and the DA right. Mr Le Roux said that the ANC had an interesting history of protecting corrupt elements within their ranks, regardless of the harm it might cause to democracy in South Africa.
Kgoshi Mokoena ruled that Mr van der Merwe was out of line and implored that he stuck to the issue at hand.

Mr Delport objected to the ruling by Kgoshi Mokoena and said that if he continued to rule against the opposition then he would ‘deal’ with him (Kgoshi). He said that he wanted to create an atmosphere of mutual understanding as well as one in which Members could have a laugh, but if the Co-Chairperson continued to silence the opposition then the debate would be soured. He said that he never pointed fingers, but merely proposed that both the concerns of the ANC and opposition were put in writing.

He added that he agreed with some of the recommendations made by Mr Carrim, but that the core business of the opposition was to voice their concerns on contentious matters and to advise Parliament. He noted that the other issues raised by Mr Carrim were side issues that could be addressed through the opportunity that was provided to political entities.

Mr Delport said that it was correct that the legislation was not clear, hence there being nothing about an enquiry or whether any dismissal or removal by office of the National Director of Public Prosecutions (NDPP) must be preceded by a suspension. He said that this created enormous difficulties for Members as the reasons given for Adv Pikoli had been vague.

Mr Delport noted that there was a question mark on the legality of the process that had been followed as the President came with totally new reasons for the axing of Adv Pikoli. He said that the legislation was not clear and thus the Constitution should be consulted to ascertain the guiding principles. He stated that there were distinct features in that the goal posts kept on being shifted through the introduction of new evidence. Mr Delport said that this was not a just process to follow as Adv Pikoli kept on having to fend off new allegations and reasons given for his suspension and ultimately his axing by the President.

He added that the Ginwala Commission had vindicated Adv Pikoli in all aspects, but questioned the motives and lies of the Justice Director-General (DG) that clearly was out to get Adv Pikoli. He said that at the Ginwala Commission unfounded allegations by the Justice DG had been made, especially the ones that were levelled against Adv Pikoli prior to his appointment as the NDPP.

Mr J Nyambi (ANC) said that he agreed that the presentations by the principals would assist the Committee in and that all Members had to be objective in their questioning. He said that Rev Chikane had clarified several points regarding the seven/fourteen days issue.

He added that Members must not be tempted to discuss the suspension letter and the Terms of References regarding the axing of Adv Pikoli selectively as it might create problems. He said that the suspension letter as well as the Terms of References regarding the axing raised two separate issues that could not be linked to the Ginwala Commission. He stated that the replies on the actions by Adv Pikoli were questionable in light of the Browse Mole Report and the search and seizures on the Union Buildings. He said that there was definitely a lack of appreciation from the side of Adv Pikoli as he was not able to concede that as a human being he might have weaknesses.

Mr Nyambi said that it seemed that Adv Pikoli had decided to only accept the findings that were favourable to him. He said there was a need to engage more objectively as the ANC had not yet made a decision whether it would endorse the axing of Adv Pikoli.

Mr Carrim noted that it was not only about the outcome but also the process, as Parliament never had to deal with a situation like this. He said that he had to clarify certain issues that had been raised by the opposition. It was unfair to say that ANC Members dealt more aggressively with Adv Pikoli than the Executive, as the ANC had sat with two members of the Executive for along time to ascertain certain information.

He added that most of the concerns and questions by the opposition had already been asked by ANC Members when they met with the Executive and that Members had to admit that there were perceptions on both sides of the political spectrum. He said that the issue should not be prolonged as Members still had to tend to other House business, but cautioned against rushing through the process as the Committee was setting a precedent.

Mr Carrim said that both sides had to be listened to so that an inclusive and comprehensive report could be prepared as the oversight role that Parliament played was not only restricted on the outcomes, but also on the critical engagement with the Executive. He noted that the ANC would not dance to the tune of the Executive.

He added that he did not agree that the legal issues were a separate issue and that he hoped that the law would clarify how far the previous Justice minister had over-stepped, if indeed. He said that it was not a complete issue of separation of powers, as the NDPP was located between a Judge and the Executive, and could thus not be considered as a Judge as it acted on behalf of South Africans against the accused.

Mr Carrim added that the whole matter was complicated and nuanced, devoid of any clarity. He also added that he was not convinced that the country would have been plunged into disarray just because the NDPP decided to arrest and prosecute Jacki Selebi. He asked why it was considered wrong for the President to ask for a delay in the arrest of Jacki Selebi, as the President had a duty to ensure that the SAPS cooperated fully with the Directorate of Public Prosecutions (DSO) investigation. He stated that the Committee was not a commission of enquiry, but that it was imperative for Members to deal with the credibility of the submissions made. He said that the Ginwala Commission had concluded that there was no interference from the Executive in the Selebi matter.

He said that there was a need for the Committee to debate what the relationship between the NDPP and national security was and how distinct the NDPP really was from the National Intelligence Agency (NIA) and the South African Secret Service (SASS).
Mr Carrim stated that the responses by Adv Pikoli were very compelling and good, but that he found his responses on the Browse Mole Report (BMR) very inadequate, especially regarding the disappearance of the preliminary BMR, presented to him in March 2007. He noted that surely there must have been a copy of the BMR on one of the NPA computers. He also questioned the judgement of Adv Pikoli when he decided to wait for three before he passed the BMR onto the NIA and the SASS. He said that by allowing another three months to lapse, Adv Pikoli ‘allowed’ the DSO to finish their report which did imply a remarkable lack of judgment and insensitivity from the side of Adv Pikoli.

Mr Carrim said that the Committee report should cover all issues of processes as well as the legal framework, with the latter addressing the questions raised by DA. He stated that the relationship between an enquiry and a subsequent decision by the President should also be interrogated to establish how far both conclusions and or decisions can go. He noted that parameters could be set, without it being too prescriptive. He suggested that maybe the NPA Act should be amended so that Parliament could also play a role in the appointment of the NDPP.

Mr R J Tau (ANC, Northern Cape) noted that Members should avoid a situation where it becomes ‘us’ and ‘them’. He stated that it must have been very difficult for the President to reach a decision based on the Terms of Reference and that the Ginwala Commission failed to address many issues that now complicated the process.

Mr Tau asked why the Committee should be led to believe that the President was obliged to accept the findings made by the Ginwala Commission as the purpose of the Commission was to inform the President so that he could make an informed decision. He said that the President had allowed his conscious mind to guide him to the conclusion that was finally reached and that there had been nothing wrong in making that informed decision.
He added that the submission by Adv Pikoli was very defensive, but that he understood that it was human nature to defend oneself, especially when a person’s integrity was on the line. He noted that Adv Pikoli was aware that NIA had problems with the vetting process, but yet the DSO still converged on the Union Buildings with unvetted officials. He accused Adv Pikoli of putting the country at risk as he (Pikoli) should have understood the intelligence and security environment, even though he said that he was not a security expert.

He added that Adv Pikoli tried to give the impression that he had cordial relations with the Minister, but yet when the Malawian NDPP asked for assistance Adv Pikoli was very quick to refer the matter to the Justice DG. Mr Tau said that this smacked of an adversarial relationship, especially since Adv Pikoli and the DG could have briefed the Minister jointly. Mr Tau said that it seemed as if Adv Pikoli said that it was responsibility of ‘her (the Minister)’s DG to inform her about the request and the plot against the Malawian President.

He added that it was wrong to conclude that the Minister tried to interfere in the Selebi matter as she needed information that would have allowed her to brief the President on the course of action that had to be taken. He noted that President expected the NDPP to report back to him after the National Security Council, under the chairmanship of Rev Chikane had met. This did not happen and instead the President was presented with arrest warrants. Mr Tau said that the ‘infallible’ Adv Pikoli should have been more humble and in the process misled the opposition.

Ms De Lille noted that it was difficult to respond to an argument without basis as many Members talked all over the show and asked Members to make references to the Ginwala Report when they made a statement.

Mr Bhutana Khompela (ANC) thanked Ms de Lille for suggesting that Rev Chikane be asked to appear before the Committee as the latter had clarified many issues, as he (Mr Khompela) had been most impressed by the Pikoli submission. Mr Khompela said that he had thought that the President had acted outside of his mandate when he axed Adv Pikoli, but that Rev Chikane had indicated that not even the Terms of Reference was limited.

He added according to the Ginwala Report (Page 133, Paragraph 184) that Adv Pikoli was very reluctant to answer the question on whether he had considered the request made by the President and said that Adv Pikoli had answered ;’perhaps I have defied the President, but hoped such a thing would never happen’. Mr Khompela said that Adv Pikoli had shown great disrespect towards the Head of State and should thus be considered as an ‘arrogant person’.

Ms De Lille noted that according to the Ginwala Commission (Page 11,Paragraph 13 and 14) the Government had failed to prove that Adv Pikoli was unfit for his position and that she was unconvinced that there had been an irretrievable breakdown in relations between the Minister and Adv Pikoli. The Commission also concluded that the relationship between the Minister and the NDPP had always been cordial as the two had had several informal and formal engagements. She said that the Committee should not be coaxed into debating the character of Adv Pikoli, as it was not on ‘trial’.

She added that the Ginwala Report did not refer to a breach of national security, but only mentioned that Adv Pikoli did not consider national security and if that was indeed a breach of national security then she would like to know how it was remedied. She noted that it was only speculation that Adv Pikoli had breached national security. Ms de Lille said that the Constitution was very silent on the national security matter, and that it seemed as the Government was saying that he ‘failed’ to take it into account. She asked the Committee to reinstate Adv Pikoli by giving him a second chance as the Ginwala Commission had made suggestions on how the mandates and roles of both the Ministry and the NDPP should be sorted out.

In relation to Mr Khompela’s last remark, Ms de Lille said that the Ginwala Report (Page 184, Paragraph 294 ) stated that Adv Pikoli was asked a hypothetical question on whether he would defy the President. She noted that his reluctance to answer was thus a response to a hypothetical question posed to him and could thus not be considered as facts by Mr Khompela.

She added that Adv Pikoli did respond by stating that national security could never be a factor in deciding on whether a person should be criminally prosecuted. Ms de Lille noted that the Police Commissioner was not above the law, especially in light of the Constitution stating that ‘all was equal before the law’. She said that it was wrong of the Police Commissioner to expect any special treatment, just because he happened to occupy that high office.

Ms de Lille said that allegations that Adv Pikoli had made during his submission had yet to be investigated, especially around the actions of the Acting NDPP who approached a sitting Judge with a request to withdraw the arrest warrants meant for Selebi.

She said that during the last fourteen years, South Africa had been done a great disfavour by the ANC Parliamentary Caucus, as it had colluded with the Executive on several issues, which begged the question whether Parliament was not a lap dog of the Executive. She noted that Parliament should show the Executive that it would not allow the Executive to continue using Parliament to ratify its decisions as the Executive should be held accountable.

Ms de Lille said that she would rather want to be amongst the citizenry, busy with electioneering rather then taking part in a process that would only lead to the ANC dominated Committee endorsing the decision made by the President. She noted that Members should stop acting as pseudo lawyers as they were not busy conducting an enquiry. She stressed the importance of the facts contained in the Ginwala Report and said that only once a thorough and objective assessment had been made about the Ginwala findings, could a just decision be reached.

Mr Swart noted that the seven/fourteen days request by the President and the BMR was very important and that he accepted both the submissions made by Adv Pikoli and Rev Chikane. He said that the Committee could not question the honesty and integrity of Adv Pikoli as he had been vindicated by the Ginwala Commission, even though some adverse findings had been made. He said that when Adv Pikoli suggested a one week ‘grace period’ the President had not engaged with him on the adequacy of this. He said that this was crucial; especially in light of the wild allegations that had been made concerning Adv Pikoli having been in breach of national security. He said that the President should have said it back then already. He added that there was no indication that the President had been startled, nor was national security ever the reason for the institution of the Ginwala Commission.

He noted that the President and the Minister had both been briefed about 10 to13 times respectively on the Selebi matter which meant that they knew about the ongoing investigation. It was thus difficult to believe that there was an irretrievable breakdown of relations between the Minister and Adv Pikoli.

Mr Swart said that the conduct of the SAPS should also be looked at as they had actively engaged in sabotaging the criminal investigation into Selebi. He noted that he had worked with Adv Pikoli for ten years as a Member of the Justice Committee and that he had never thought of Adv Pikoli as being unfit and improper for the position of the NDPP. He stated that Adv Pikoli admitted that as a human being he was fallible and that maybe he (Pikoli) should have made more concessions.

He added that South Africa had a big problem with crime and that it would be wrong to endorse the decision by the President and that he expected the Committee to consider all the information during deliberations.

Mr Monareng said that the deliberations had been helpful and that the Committee had to come up with a way on how the report should be written.

Kgoshi Mokoena asked Members to come up with possible dates for the next meeting. He proposed that the Committee either meet on the 10 or 11 February.
Mr van der Merwe suggested that the Committee reconvene on the 10 February at 3pm.

Ms de Lille said that she had no problem with an extension, provided that the Committee concluded its business within the required 30 days.

Mr Carrim stated that the Committee researchers must be mandated to finish the report.

Members agreed to reconvene on 10 February.

Mr Cecil Burgess (ANC) said that if the President agreed with the Ginwala Commission then the Committee would not have been constituted in the first place. He said that the Ginwala Commission had been tasked to make findings and table those findings in the form of recommendations to the President, which could be obliged to or not.

He added that Adv Pikoli should have been held liable for the BMR as it was ‘the mother of all evil documents’. He said the fact that Adv Pikoli could not account for the whereabouts of the preliminary report as well as the subsequent leaking of a top secret document raised several questions as something of this magnitude never happened in the intelligence community.

Mr Magwanishe said that section12 (6) (a) of the NPA Act instructed the President to apply his mind which he did. He said that the Ginwala Report was not the only information that had to be taken into account and that it was wrong to suggest that Parliament must have an adversarial relationship with the Executive. He noted that even though the issue of national security had not been argued before the Ginwala Commission the President had consulted more broadly before he made his decision. He noted that the evidence had proved without a doubt that Adv Pikoli acted against the Constitution and subsequently put South Africa at risk. He said that he agreed with the President and that the ANC would endorse the decision by the President.

Mr Ntuli said that the State President had made an informed decision as the Commander of Chief as he was ultimately responsible for the protection of South Africans.

Mr Carrim said that he was bemused at Ms de Lille’s statement as his record as the Justice Committee Chairperson had shown that he did not dance to the tune of the Executive. He said there was a need to review the legal framework governing the NPA as it had ultimately failed to provide guidance on the matter.

The Co-Chairs thanked the political parties for their input and adjourned the meeting.


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