Picking at the Pikoli Report

Given the sheer size of the report and the fact that I do, contrary to popular believe, have a day job, picking is all I can do to this report. The report by Dr Frene Ginwala or her counsel, if any, is one that is long and complex, at least to me. What if anything are we to make of this report? Should it in any way be a surprise? The one thing it is, at least for me, is confusing not in itself but in its implications. Here we go:

The National Director of Public Prosecutions (NDPP) may only be removed from his office for misconduct; on account of continued ill-health; on account of incapacity to carry out his or her duties of office efficiently; or on account thereof that he or she is no longer a fit and proper person to hold the office concerned. In terms of the Act, only the president may have the NDPP removed following a commission of enquiry whose terms of reference would among others, be to establish whether there are grounds to remove the NDPP.

So says the Act of parliament that not only creates the office of the National Prosecutions Authority, but also determines how such office will, among others, be staffed. Everyone including Parliament and the president are subject to this Act. This Act also provides that the removal of the NDPP and the reason for his removal shall be communicated by message to parliament within 14 days after such removal. The removal should of course follow the outcome of the enquiry. Parliament shall within 30 days of the tabling of the message of the removal of the NDPP pass a resolution to confirm the removal or restore the NDPP. If Parliament votes to restore the NDPP, the President shall restore him.

The Act also sets out the procedure for the removal of the NDPP on what I term no-fault basis, but that is not half as exciting as what I term the “booting-out” provisions. As we all know, Vusi Pikoli is facing being booted out pending Parliament’s rubber stamp. I am not aware of any provisions of this or any other Act that sets out what it is that Parliament should consider or determine prior to resolving to restore the NDPP or to confirm the removal. What is clear, at least to me, is that the Act only contemplates and regulates removal of the NDPP in terms of the provisions of the Act. You may want scroll up or look up in order to refresh your memory on the grounds on which the NDPP may be removed. Other than on or for the grounds set out above, the president may not, at least in my view, remove the NDPP. The National Director or a Deputy National Director shall not be suspended or removed from office except in accordance with the provisions of subsections (6), (7) and (8). The subsections referred to are the grounds that I set out above. This is a prohibition the president has no choice but to respect.

Well, this is where it breaks down for me and gets rather confusing. Mr Pikoli was suspended and put through an enquiry to answer to a variety of charges. The terms of reference for the enquiry were 1) whether he is fit to hold office; and 2) whether the relationship between him and the minister of justice had broken down.

Mr Pikoli was suspended by Thabo Mbeki, the then president of South Africa. It is not clear to me whether the president or the presidency or the ministry of justice, formulated the terms of reference.

The report is some 218 pages long. Granted it is in big font and double spacing but it is still 218 pages long – so no, I have not read all of it but the following quote among others, is what I have read, after reading the terms of reference and the executive summary, that is:

Having considered all the matters above, the basis advanced by Government for the suspension of Adv Pikoli has not been established through the evidence submitted to the Enquiry.

This is what the enquiry finds in respect of the matters properly put before it and testified to and argue by counsel for both sides. And this is what I suppose the media reports referred to when they announced that “Pikoli has been cleared by Ginwala” or claims to that effect.

My goodness, how many Nicholsons can one have in one year? Apparently 2! Having considered the allegations levelled against NDPP and having found that there were not sustainable on the evidence put before her, Dr Ginwala proceeds to state:

However in the course of this 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. I feel it incumbent to draw attention to these. They centre in the main on the lack of understanding by Adv Pikoli 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.

Dr Ginwala then proceeded to set out some examples of the deficiencies as perceived by her and gleaned from the evidence presented during the enquiry. Admittedly the good Dr wasn’t called on to decide on these matters but she found it important to raise these issues anyhow. It is sort of like being charged with assault and being found not guilty and then being told that you have a propensity to kick the neighbour’s dog so you should be found guilty of cruelty to animals. But this is not new; judge Nicholson did the same thing in his judgment, waxed lyrically about matters he was not called on to decide.

I am no expert in these matters and I proceed with caution and counsel. I sought counsel of a friend who among other things finds reading law reports entertaining such that he takes a few on vacation. He also enjoys musing about the law and its practitioners across the spectrum. I put it to him that the suspension of an NDPP is an executive order of a President. If I am correct (which is doubtful at best) then such an order cannot be transmissible and be binding on the next president. I believe that for the president to issue an executive order, he must have applied his mind to the circumstances that led him to make such an order. It is on this basis that the President decided that given the conduct of Mr Pikoli, he is not fit to hold office. When as it then happened, the President is asked to leave and another replaces him, that other should in my view, apply his mind independently to that executive order and decide whether in his view as President, the circumstances are such that Pikoli is not fit to hold the office of the NDPP.

An enquiry that is subsequently ordered by the President is in my view a forum that ought to afford natural justice to the suspended NDPP. Once again if I am right, then all rules of natural justice must apply. Put differently, all those other deficiencies should have been put to Pikoli and he should have been given an opportunity to answer them.

In response my good friend asserts that the order that suspended Mr Pikoli is not an order of the President but of the Presidency and consequently it is binding on the office of the president regardless of the incumbent. If he is right, which is likely, that’s the end of the matter – but what if he is not?

Now, based on the Ginwala report, and apparently in terms of the NPA Act, Parliament is being convened to decide whether to approve or reverse the removal of the NDPP from office. Let us take it back a few steps. The sitting president did not suspend the NDPP. Presumably he confirmed the suspension and proceeded to act to notify Parliament of the removal of the NDPP – apparently in terms the legislation. This he does, notwithstanding that the grounds on which the NDPP was suspended, were thrown out by Dr Ginwala. But I suppose the president has grounds and if you don’t like his grounds, he’s got other grounds.

What then is Parliament supposed to decide? Is it supposed to decide whether Pikoli is fit to hold office on the grounds advanced by the President when he was suspended or on the grounds discovered subsequently by Dr Ginwala? This is fascinating considering that a few months ago Thabo Mbeki was lambasted for interfering with the prosecution when he would not let the prosecution execute some warrants of arrest. It turns out that what Thabo Mbeki did was to request some time for him to attend to some matters of national security that would follow the execution of the warrants in question.

The confusion gets worse on my part. Can Parliament confirm the removal of Pikoli when the grounds put forward against him are not even good enough to sustain his suspension? Will Parliament consider the recommendations made by Ginwala? She does by the way recommend that Pikoli be restored to his position since government and not the President, failed to sustain its case against him. She then proceeded to recommend that those other issues that she raised should be dealt with through dialogue and other means. I believe it should follow that all those other grounds put forward, of her own accord, by Dr Ginwala do not amount to Mr Pikoli being unfit to hold office of the NDPP, otherwise she would not have recommended that he be restored to his position and that he should work on some of his bed-side manners.

In the meantime, the director-general of the department of justice was found by Ginwala to be not such a good person for the job he is required to do but hey, he gets to keep his job albeit for a time being, if what we are told by government is or can be anything to go by.

Me'thinks all this shows is that: it is not that Pikoli was ever loved but that Mbeki was hated more.

On Heidi Holland and the racist onslaught (a post by Moremogolo)

The article by Heidi Holland in the opinion and analysis pages of the Star (8 December 2008) is an interesting read. Interesting in the sense that it is a cleverly written lot of nonsense with lots of factual inaccuracies. I think it also betrays a lot of, yes, deep seated racism that is prevalent in the majority of whites in this country. You will notice that I say majority and it is not an error. In her eyes Black people are not meant to be ruled by intellectuals and intellectuals in this country aspire to be embraced by the west and suffer from identity crisis as a result of being intellectuals. Africa deserves to be ruled by “fools” like Zuma whose only ambition is to be a ruler one day.

This is both an insult to Mbeki and Zuma personally and serves generally to indicate how whites like Holland perceive the African people and their leadership in general. The intellectualism of Thabo Mbeki does not sit well with people like her and the rest of the West because he has challenged their perceptions about Africa and has pushed vehemently for Africans to find solutions to their own problems. The grip that the west has on Africa is slowly loosening thanks to Mbeki’s efforts. Mbeki is being ridiculed and misrepresented on the Aids issue because he dared challenge the pharmaceuticals and their western governments on their approach to tackling this crisis in Africa. Mbeki is also being called aloof because whites in this country and elsewhere feel that he escaped from their pockets once the ANC came into power.

Zuma is liked because he will help perpetuate the myth that Blacks are eternally stupid. His ambivalence on issues of policy and his constant stupid remarks is liked because it makes great writing on a typical of an African leader. The masses liking Zuma is typical of the African majority who stupidly follow leaders without questioning. Indeed if you read articles posted by readers on news 24 you will be constantly reminded how stupid Africans are by responses from white readers.

This patronising attitude by whites is very prevalent in the judge Nicholson judgement where he made pronouncements on issues he was not asked to make pronouncements on because he knows what is best for Africans. Africans are wont to fight against each other and he needed to put a stop to this and guide them on how they should conduct themselves.

Of course people like Malema and Mantashe have led credence to these notions that blacks are eternally stupid by pronouncing judge Nicholson “a sober judge” and the judges of the constitutional court, the majority of who are Black “counter revolutionaries” who “make their decisions at shebeens”.

But then again there are a lot of Mantashes and Malemas in our country who uncritically accepts the vile diatribe that is spewed by the Hollands of this world. And the nonsense that they write is hailed as good journalism. Nonsense riddled with historical and factual inaccuracies that have come to pass as fact and truth.

The Zimbabwean situation has become of the issues that is being advanced by people of Holland’s ilk and swallowed by the majority of this country uncritically. It is after all Claire Short, Britain’s Secretary of State for International Development at that time, with the support of her government, who could break a binding agreement between the Zimbabwean and British governments casually by saying that “I should make it clear that we do not accept that Britain has a special responsibility to meet the costs of land purchase in Zimbabwe. We are a new government from diverse backgrounds without links to former colonial interests. My own origins are Irish and, as you know, we were colonised, not colonisers." (5 November 1997)
And of course the much revered Tsvangirai has learnt well from the colonial masters in casually breaking binding agreements. I am yet to hear the views of these self righteous people like Holland and the west on Mbeki’s response to the MDC’s letter.

In agreement with Andile Mngxitama’s article in the City Press (7 December 2008), there is an urgent need for a new kind of consciousness to counter these patronising perceptions that are being spewed by Holland and her masters.

De-Bait or not De-Bait, that is the question . . .

I am farcically reminded of a “joke” I read years ago in which the legendary Sipho was asked by his teacher to construct a sentence using the words, defence, defeat and detail. Sipho proudly stated that “de cow jumped over defence, defeat first and then detail”. The farce is brought about the latest election trail noises which sadly sacrifice true politics in favour of sound bites (this by the way was said by Julius Malema some 2 weeks ago, the part about sound bites), except he said Polotics, but we all get what he is saying.

There seems to be a belief that the ANC is somehow obliged to respond or agree or accede to any and all requests and demands made on it by political parties, the media and other civil society organisations. This is apparently so if the reports about the recent Helen Suzman’s round-table watchamacallit is anything to go by. It is reported that the ANC turned down the invitation to participate in the recent round of the table which was to discuss the threats to our constitution. There is apparently, at least as far as I can follow the noise, a link between the conduct of the ANC over the recent months, chiefly its decision to recall the then president of the Republic, and the mooted threat to our constitution. I ask sincerely, "which part of the constitution and how so?" Would somebody please offer guidance on the meaning of proportional representation! It is the Party stupid! Not the individual! It sounds to me like the invitation was akin to “come over to the table so that we can tell you how terrible you are and that way impress upon you to mend or to undertake to mend your ways". Incidentally, a similar invitation to one Julius Malema, an ANC NEC member, had the opposite effect. It’s true ask Justice Malala; the more he pressed, the more he looked bad – on his own show! But I digress, the issue is the invitation to Helen’s table.

As it turned out, the ANC was apparently more than ably represented by one Sipho Seepe, an academic and socio-political commentator of unknown political affiliation but apparent dislike of Thabo Mbeki. He apparently eloquently argued and demonstrated to those at the table that there is as a matter of fact no threat, current or pending, to our constitution. In support of this argument, so the reports go, Seepe pointed out (and was later echoed by Carl Niehaus on a different platform) that notwithstanding the dominance of the ANC, it never once set out to mess with the constitution even with more than two-thirds majority in the legislature. That may be so (notwithstanding some 12 or so amendments to the constitution, nothing serious) but we all should at least agree that those were different times. So, for me the threat to the constitution is neither here nor there. It is with respect a redherring.

Just so that we are clear, I am of the view that the ANC is quite entitled to choose the forums it wishes to participate in. If this diminishes its standing as a credible political party, so be it. The Helen table can for all I care be as disappointed as it wishes, but that is no dandruff of my scalp. Redherring, I tell you. This and similar debates are nothing but a platform for the well-known scare-mongering tactics. Every election since 1994 has been preceded with such claptrap intended to frighten South Africans into voting this or the other party. It is no surprise that the opposition attended at the table in their numbers, they have everything to gain – they can’t afford the publicity. This is similar to the invitation to a debate, by the other Helen to Jacob Zuma. Now why would the president of the largest and governing political party want to debate a mayor?

Believe me, I have a million bones to pick with the ANC but not this one. It is quite astute of it not to have taken de-bait – this time.

Individuals infect and get infected by HIV, not communities . . .

Today is Aids Day, everywhere in the world. Professor Malegapuru Makgoba is upbeat about the whole affair, where South Africa is concerned that is. He insists that this is no flash in the pan excitement either – No! his excitement is here to stay. In his own vernacular words he says “once you have woken up the chickens, you can’t put them back to sleep” (my translation).This is with reference to the change of government approach to HIV/AIDS since the appointment of Ms Hogan, the new minister of health – who in a few fundamental ways is not like Ms Tshabalala-Msimang, the previous minister of health.

The government of Thabo Mbeki, according to Professor Makgoba made it impossible to tackle the pandemic and apparently medics were not even free to say HIV causes AIDS. Some powerful fella that Thabo was, I’d say. He seems to have been one oppressive leader indeed. So oppressive scientists did not feel free to express the outcomes of what must have been their scientific results and conclusions – as opposed to Google search results. This is where I would like to leave it insofar as government and HIV/AIDS is concerned. My celebration or commemoration of this day is about the people, especially the individual.

Lucky Mazibuko is among many things a HIV positive and positive living columnist who writes for the Sowetan newspaper. One has to give it to that bustling metropolis, Soweto. Its own newspaper, radio station, television, shopping mall, marathon and soon will have its own street racing just like Monaco. I can imagine the miniature yachts during the race week – floating merrily on the lake near Rockville . . .

Lucky was recently on radio defending one of his articles on the subject of HIV/AIDS – at least that is what it sounded like to me. He apparently wrote something to the effect that we have beaten the “government must do something about aids” drum for long and loudly enough and that we must now switch to another drum. That way I presume the rhythm section will sound better. Lucky argued, correctly in my view; that individuals ought to take responsibility for their personal health. The counter argument went along the lines that the circumstances for personal choice are simply not conducive for others. I agree with that too. The proponent of the counter argument illustrated her point with reference to young girls who are forced into all manner of situations by their fathers, uncles and other family and familiar men. These children cannot find avenue to express their choices; in fact it is argued, they do not have a choice at all. So against their will and better judgement they get infected.

So, in our classic South African “either/or” approach, we should forget about this personal responsibility and choice nonsense until we have fixed the ills of our society that denies the majority of our people the choice to be healthy, celibate, promiscuous, responsible and so on and so forth.

It sounded to me like any mention of personal responsibility for one’s health, presupposes that the government will be excused from doing what it should in relation to the pandemic specifically and about other health matters generally. The personal choice and responsibility approach, one caller argued, will be supported by the capitalists and their surrogates who in his view have no respect for issues of the collective. I could not follow the rest of the caller’s views but I remember thinking how riveting it would be to have a beer with him while discussing the ills of our society.

Lucky, wherever you may be, in me you have at least one supporter. To the rest of our fellow sex loving South Africans (as if this is read by anyone other my wife dearest and her sister and one other friend) – it is really up to you. Whether HIV causes AIDS may be an interesting debate to engage in. You may even have objective scientific basis to demonstrate your view. You do have to concede though that there is overwhelming evidence that indicate that if you engage in sexual intercourse without a condom, you are likely to infect or become infected with the HI virus. What the virus gets up once you are infected, is in my view moot. There are a whole lot of other good reasons why one should practice safe sex – this is however not a post on morality, which turns out to be yet another personal and individual choice. There is a call for government to intervene here too.

In fairness to the counter argument, I must state a further illustration of theirs in support of the assertion that government should do more. It was pointed out that the smoking rate among South Africans has declined because of the laws prohibiting smoking in public places and around small children and at work, etc. As I listened to this, I tried very hard not to walk away in a huff. Now that I have calmed down, may I impress upon the proponent of the counter argument that we already have laws that prohibit sexual intercourse with a person who does not want to engage in sexual intercourse. This is the whole dreaded consent issue of which the least said the better. Furthermore, a tour of our public places, especially restaurant will show that the anti-smoking laws are hardly observed nor enforced. This is apart from the small technicality that we don’t generally get down on it in public.

This Aids day and the days coming each individual should please make a choice to lessen the opportunity to infect or be infected and most importantly, to help others make that choice.

Otherwise, you better be lucky.

Of governments and just deserts . . .

Mr Lekota, having accepted an invitation for a meeting from some business people of Stellenbosch, proceeded to arrive some 2 hours late. Not a good showing for a new deal kinda guy, I’d say. The hosts, even though some decided to vote with their time-conscious feet, were persuaded that the man’s personal safety is a good enough reason to be late – sort of like being late for golf because you first had to see to the birth of your child.

It is during this Stellenbosch meeting that he was asked whether there was any truth to the rumour that COPE was planning to go into bed with DA and produce democratic people with a congress. In response Mr Lekota mused out loud as to why Msholozi was picking on the white lady. Anyway, he was not going to take any of that. Who said chivalry was dead? For someone who has outsourced the safety of his loved ones to ADT I probably should shut up when it comes to matters chivalry related.

And then there was all that talk about dying and going to the grave in pairs. Once again for a new deal guy he really ought to choose his words wisely. This is said presumably to demonstrate the ultimate commitment to the defence of democracy. I don’t know about laying one’s life down for democracy or for a leader of your particular liking, what I do suspect is that Mr Lekota did not mean death like that. After all, he is not too keen to be without his police protection, a matter that led to him showing up late at the meeting under discussion.

The view of the hosts is that this man should be knighted or something close. In their words (paraphrased of course – I’m the one at the keyboard so complain all you like) they invited Mr Lekota to among others see who the saving grace for the country is or can be during these trying times. They wanted (probably still do) to satisfy themselves that we are not going to the dogs. I’m not sure how all that clever deductions and conclusions were reached. To each his own, I guess. All this, before the man and his new party have done or said anything to demonstrate that they are a new deal kinda bunch - with respect.

Seriously though, is Jacob Zuma really a racialist person? I suspect that there is a distinction between being racialist and being racist. According to Mr Lekota, Msholozi picked on the alliance thing with the DA because the DA is led by the white lady. I ask again are these racialist tendencies that Msholozi is showing, among his other attributes? Notably Mr Lekota cautions that the president of the ANC must judge the DA on its policies and not the colour of its leader. Methinks Terror doth protest too much. Surely both the colour and policies of the DA are known – they have a website for crying out loud.

As for the defence of democracy that politicians will be bandying about from now until the announcement of the election results – something tells me that the surest way to defend democracy is to practice it. I have this mantra (which I may have inadvertently plagiarised from somewhere or came up with during the time I went fishing with my friends from Durban): “Love thrives only in its own presence”. This however I have just come up with: “Democracy, like love, thrives only in its own presence”. As you accept democratic outcomes, however unpalatable and work to sway others to your side of debate, that way, democracy thrives. It follows however that, if there is no democracy around, it does not matter how much of a democrat you are, you best get out of the tent, piss into the tent and run.

Cope does not have the luxury of poorly chosen words and ill-considered statements and badly phrased proclamations. It will not, for very good reasons, be judged by Julius Malema’s standards. Besides, even Jacob Zuma agrees that we deserve better when it comes to standards of behaviour.

On the other hand the face and candidate for the president of the Republic of South Africa, of the ANC is Jacob Zuma. Not only was he the preferred candidate and now president of the ANC, he will (all things being equal) be put forward as candidate for the presidency. This much has been confirmed repeatedly. " . . . for as long as there is no guilty verdict against Zuma, he will be the face of the election campaign and the candidate for president . . ." so goes the official position. If the company one keeps remains an acceptable measure of judgement of ones character, then I have some unresolved petit bourgeois concerns.

In the end though, we the people, shall get the government we deserve, no more and no less.