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.