The curious case of Mr Pikoli

July 13 2008 at 12:41PM
Sunday Independent

By Jeremy Gordin

The Ginwala inquiry into whether Vusi Pikoli is fit to be the country's national director of public prosecutions has mostly been a grave and formal affair.

Adjourned this week until August 1 for the preparation of closing arguments, the inquiry has been held in the large and impressive council chamber of the Johannesburg city council edifice on Braamfontein hill.

There, Frene Ginwala, the former speaker of parliament and the possessor of an exquisitely modulated voice of the sort once known as a "BBC news reader's voice", has, as chairwoman of the inquiry, kept a proverbial eagle eye and a firm hand on the proceedings.

Ginwala has been flanked by a number of officials, including Ishmael Semenya SC, her legal adviser.

In front of her, to her left, has been "the Pikoli group", including Wim Trengove SC, one of the top legal brains in the land, and Gerrie Nel, the well-known national prosecuting authority (NPA) prosecutor in charge of the case against Jackie Selebi, the suspended national commissioner of police, and Charin de Beer, who led the 2006 prosecution against Jacob Zuma, the president of the ANC, for rape.

Also seated in this group, when not giving evidence, has been Pikoli himself, suspended last year by President Thabo Mbeki.

To Ginwala's right has been the state's legal team, including Kgomotso Moroka SC, daughter of Dr Nthato Motlana of the famous Soweto Committee of Ten, and the flamboyant and often bellicose Seth Nthai SC. Both are presidential nominees to the Judicial Service Commission (JSC), which has lately been pondering the matter of the constitutional court versus Judge John Hlophe, judge president of the Western Cape.

Occasionally, Ginwala has apparently nodded off during proceedings - she is a septuagenarian - and inadvertently left on her microphone when supposedly conferring confidentially with her lieutenants.

More seriously, there has been the overpowering feeling of bad blood in the chamber, especially in the verbal interchanges between Moroka, on the one hand, and Pikoli and Trengove, on the other, and especially in the exchanges of Nthai and Pikoli.

But, overall, the inquiry has been serious, almost ceremonial, as it should have been. And yet, at the same time, it must rank as one of the strangest, perhaps even most bizarre, events that has ever taken place in this country.

It is as though we have all been living through a local version of Alice's Adventures in Wonderland, the story of a girl who falls down a rabbit hole into a literally fantastic realm populated by strange creatures.

To begin with, because Pikoli is the national director of public prosecutions, he has had the ultimate responsibility since 2005 for the corruption case against Zuma, the president-in-waiting of South Africa. Given the divisions between the government and the ANC that are numbing the country at present, this is a serious matter.

Yet we seem to take it in our stride that the person in charge of this case - our equivalent of the United States' attorney-general - should have to face an inquiry into his competence.

And make no mistake. The inquiry might not be a trial. But a public inquiry, during which all sorts of insinuations, true or false, are made, is by its very nature the equivalent of being pilloried in public.

Pikoli, who has not been charged with doing anything illegal, has effectively been put on trial. But Pikoli is not on trial in the usual sense. An anonymous poet once wrote: "What a funny bird a frog are". And the Ginwala inquiry is a funny, or unusual, bird: it being carried out in terms of the National Prosecuting Authority Act (section 12.6) - and not in terms of labour or commissions law.

In terms of the NPA Act, the president may suspend the national director of public prosecutions, as Mbeki did, but must then hold an inquiry into the national director's fitness to hold office.

There are four reasons for which a national director can be relieved of his post: misconduct, ill-health, "incapacity" to perform, and/or not being "fit and proper" to hold the office. The state - the president, in other words - has gone after Pikoli on the last count only.

Ginwala's task has been to examine whether Pikoli is fit to hold his job given that, in the view of the state, he granted immunity to certain suspects allegedly involved in organised crime without paying attention "to the public interest and the national security interests of the Republic".

Second, the state has argued that there was a breakdown of the relationship between Brigitte Mabandla, the minister of justice, and Pikoli "in the context of the legislative and constitutional obligations placed on the minister and the NDPP [national director of public prosecutions]", mainly because Pikoli failed to keep Mabandla properly informed during the course of the NPA investigation into Selebi.

Pikoli, however, is adamant that it was the president, not Mabandla, who wanted him suspended, not because of poor communication, but because the NPA went after Selebi with alacrity while the president wanted to proceed with more caution.

The state has also thrown in for good measure that Pikoli had failed to check on the security status of a number of people used by the Scorpions to raid the Union Buildings and Tuynhuis, both national key points, in search of documents related to the case against Zuma and that Pikoli had failed to react properly and to co-operate over the notorious Browse Mole report, collated by an NPA investigator, although "intelligence" was not supposed to be an NPA responsibility.

But neither Mabandla nor the president has given evidence, nor has Ginwala called them to do so.

We thus have a classic case of a performance of Shakespeare's Hamlet without the prince ever coming on stage.

Returning to the NPA Act: the report that the president will receive from the inquiry is for his eyes only. The president does not have to divulge its contents. And Ginwala - who has said she hopes to be finished writing the report by the end of August - is not permitted to reveal its contents.

All the president has to do, if the report finds that Pikoli is not fit to hold office, is to fire him and, within 14 days, give his reasons to parliament for doing so. As Pikoli has been suspended on full pay, it is assumed that the president will not dilly-dally on the matter - but, with Mbeki, one never knows. Parliament then has 30 days to oppose the president's decision. But, given that Pikoli is perceived as an arch-enemy of Zuma, it is unlikely to opt to bring PIkoli back.

At any rate, there is no guarantee at all that Pikoli - or the public, which has paid for the inquiry - will ever know the full contents of the report.

Of course, the Ginwala inquiry might find that Pikoli is fit and proper to hold the job of the national director and then this is what the president will have to tell parliament and everyone, and Pikoli will have to go back to work.

For "even a journalist can understand" (as Nthai prefaced one of his questions to Pikoli) that the state has been scraping the bottom of the barrel in trying to find something substantial against Pikoli.

Thus, for example, the issue of security clearances of Scorpions during the 2005 raids at the Union Buildings has been raised by the state - but there was never any known resultant security breach or problem and Pikoli did not know anyway that some of his staff were not properly cleared.

Pikoli has also been clear and adamant that Mabandla was told that a warrant was going to be issued against Selebi and he has been unequivocally backed up by Nel and others.

And there has been no evidence to the contrary, because Mabandla did not give evidence.

Nel has also clearly argued that, without certain plea bargains, notably with Clinton Nassif, a drug dealer implicated in the murder of mining boss Brett Kebble, and also in a drug syndicate, the NPA would have been unable to formulate successfully a number of charges, including those against Glenn Agliotti, charged with the murder of Kebble, and Selebi.

In short, on the face of it, it looks dificult for the Ginwala inquiry to find Pikoli unfit to hold office. The only real plea bargain of relevance to his inquiry - the others took place before Pikoli's time - is the Nassif one. And was the decision to unravel the Kebble and Selebi matters via a plea bargain - whatever one may think of its morality - sufficient cause to declare the NDPP unfit to hold his post?

Still, as fair and just as Ginwala might be, or want to be, the dice are loaded against Pikoli for the simple reason that the fact that the head of state suspended him and appointed an inquiry suggests that he did something wrong.

It also worrying that Ginwala has seemed to suggest, in her responses to the media, that the normal rules of evidence - in terms of which Pikoli's version would stand because not challenged by other, direct testimony - might not apply.

But the Ginwala inquiry has not only been strange, it has also been fascinating because it has been the nexus of almost all the major court cases, legal matters and investigations that have gripped the country's imagination. The matter of the mercenaries who tried to stage a coup in Equatorial Guinea has come up because there was a plea bargain made between the NPA and Mark Thatcher.

The Zuma matter - in which Zuma was let off the hook by Bulelani Ngcuka, the former national director of public prosecutions, then charged in 2005 after Schabir Shaik was found guilty, then had his case thrown out in 2006, then was recharged immediately after his Polokwane victory, in December - has played a major role in the proceedings because of the search and seizure raids that the NPA carried out.

These raids are in turn the subject of the pending judgments in the constitutional court and therefore at the nub of the battle between the judges of that court and Hlophe: the judges have said Hlophe tried to influence two of their number into making a Zuma-friendly judgment.

And there is the whole sorry saga of Kebble and his alleged connections with Agliotti, Nassif and Selebi, and all the messy shenanigans that have emerged from the Scorpions' investigations into the mining magnate's murder.

Finally, besides the strangeness and fascination of the inquiry into Pikoli, there is at its heart a mystery to which we might one day have the answer, but probably not in the near future.

Why did Mbeki go so far to protect Selebi? Was it simply loyalty to an old comrade that caused the president to suspend Pikoli? Was it the proximity in time to the Polokwane conference at which Mbeki wanted to be returned to the ANC presidency?

Or was there something else that made the president want to avoid at all costs having Selebi in court?



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