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Media Centre  |  COSATU Press Statements

COSATU'S response to Ginwala report

09-12-08

The Congress of South African Trade Unions has noted the report of the Ginwala Inquiry into suspended NDPP director, Vusi Pikoli, and President Kgalema Motlanthe`s decision not to reinstate him.

COSATU is guided by the constitutional requirement that the National Prosecuting Authority should be an independent body, free from political interference from any quarter. The report and the President`s decision must be judged against their compliance wit h that constitutional principle.

The inquiry`s terms of reference were to establish:

"2.1 The fitness of Advocate V Pikoli, to hold the office of National Director, in particular:

"2.1.1 Whether he, in exercising his discretion to prosecute offenders, had sufficient regard to the nature and extent of the threat posed by organised crime to the national security of the Republic.

"2.1.2 Whether he, in taking decisions to grant immunity from prosecution to or enter into plea-bargaining arrangements with persons who are allegedly involved in illegal activities which constitute organised crime, as contemplated in the Act, took due reg ard to the public interest and the national security interests of the Republic, as contemplated in section 198 of the Constitution, as well as the Prosecution Policy.

"2.2 Whether the relationship between the National Director and the Minister has irretrievably broken down. In particular,

"2.2.1 Whether he failed to appreciate the nature and extent of the Constitutional and legal oversight powers of the Minister over the prosecuting authority;"and such other matters as may relate to the fitness and propriety of the National Director to hold office."

On most of these issues, the report exonerates Pikoli, whom it describes as a person of unimpeachable integrity and it concludes that the basis advanced by Government for his suspension had not been established through the evidence submitted to the inqui ry, and that he should be reinstated into his position.

At the same time however the report makes many criticisms of Pikoli, some of which vindicate COSATU`s own criticisms of Pikoli and the NPA under his direction. These include:

  • His failure to stop the Scorpions from conducting an illegal inquiry which led to the Browse Mole Report and then to take disciplinary action against those responsible. This was one of the worst examples of the NPA and Scorpions, under Pikoli`s direction , acting illegally and unconstitutionally in pursuit of factional political agendas.
  • Developing illegal intelligence gathering capacity within the Scorpions.
  • His use of unvetted staff when conducting search and seizure raids on sensitive buildings such as the Union Buildings and Tuynhuys.

Other criticisms made by the report are more problematical. The report identified some deficiencies in the capacity and understanding of Adv Pikoli to fully execute the range of responsibilities attached to the office of the NDPP - 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& A dvocate Pikoli did not fully appreciate the sensitivities of the political environment in which the NPA operates, and his responsibility to manage this environment.

This appears to contradict the principle that it is the NPA`s duty to act independently of the executive and this appears to be confirmed by the report`s worrying statement that Adv Pikoli needs to always recognise the final responsibility of the minister and should have proactively made her aware of all the matters of a sensitive nature that the NPA became aware of in the course of its functions, and fully and regularly briefed her on the progress of high profile investigations and prosecutions.

This section of the report appears to reach a bizarre conclusion. It confirms precisely that the serious charges of political interference by the government in the NPA`s decisions are not only true but are justified.

As Judge Nicholson`s ruled, in relation to the prosecution of ANC President Jacob Zuma, there should be no relationship (of the NDPP) with the Minister of Justice  certainly insofar as his decisions to prosecute or not to prosecute anybody from the Commi ssioner of Police downwards. COSATU fully endorses his comments.

This problem is highlighted by the section dealing with the NPA`s attempts to obtain search and seizure warrants against SAPS National Commissioner Jackie Selebi. The report bluntly states that Adv Pikoli failed in his duty to keep the minster informed. H e did not recognise he was obliged to do so, indicating that it was his call and he had not considered it as necessary.

This section of the report confirms fears COSATU expressed when the Ginwala inquiry was first established - that it was not even being allowed to investigate whether the real reason behind Pikoli's suspension was to prevent him obtaining warrants against t he Commissioner of the SAPS, Jackie Selebi.

COSATU`s Central Executive Committee in October 2007 raised a concern that Ginwala`s probe would continue to lack credibility because she is a member of the NEC of the ANC and a member of Joe Mathews-headed Ministerial Review Commission on Intelligence lau nched by the Minister of Intelligence in October 2006. Given the above can Frene Ginwala be neutral and above all is she probing the real issues or non-issues?

The CEC was clearly right to raise the danger that the inquiry report would turn out to be a gigantic whitewash. Ginwala was not going to be allowed to get to answer the most serious questions:

  • Did the President interfere with the prosecution of Selebi or not?
  • Was Pikoli dismissed for refusing to comply with what was quite clearly an illegal instruction not to proceed with the administration of justice?
  • Did the Head of State stop Pikoli from performing his duties?

The problem with the report`s terms of reference is that they were carefully crafted by the Presidency to avoid answering these questions and were clearly designed to exonerate people who took illegal decisions. The Presidency has a massive conflict of int erest, since the former President was being charged by Pikoli of routinely interfering with the administration of justice, contrary to the Constitution Clause 165 (3) that states that No person or organ of state may interfere with the functioning of the c ourts.

In an interview with Radio 702 on 2 October 2007, acting NDPP, Mokotedi Mpshe, said that when President Mbeki gave him the job, he instructed him to look into "this matter around Jackie Selebi". Then a week later he told e.tv that "[The President] never me ntioned the Selebi name to me." As COSATU said then: One of these statements has to be a lie".

That is why, under the circumstances surrounding his appointment, COSATU said it could not have confidence in Mpshe and seriously doubted whether he could afford to be independent and impartial, knowing what happened to his predecessor.

Now Ginwala almost casually dismisses this most serious charge: "I did not find any substance in Adv Pikoli`s assertion that the reason for his suspension as to stop the prosecution of the National Commissioner of Police".

Yet the report quotes Pikoli`s evidence that the Minister, Brigitte Mabandla`s, letter of 18 September 2007 "constituted an unlawful and unconstitutional instruction to him to desist from pursuing the matter against the National Commissioner of Police". Th e Minister responded that she did not intend to interfere with the NDPP in the exercise of his prosecutorial discretion, but the report concedes that "the literal reading of the letter leaves no room for doubt that this is what it conveyed"!

She then lets the Minister off the hook with the lame excuse that "at that time, the opinion of Adv Pikoli was that given the history of their relationship he was satisfied that the Minister could not have intended to give an unlawful instruction".

The report then goes on to provide further proof that there was indeed Presidential interference, when it admits that the President considered that "the enabling environment& would have required a period of two weeks (before serving the warrants) which Adv Pikoli was no prepared to concede".

COSATU believes that the conduct of the NPA under both Pikoli and his predecessor, Bulelani Ngcuka, did indeed pose a serious threat  to the constitution and the law. This was the manipulation of the judicial process by members of the then government agai nst Jacob Zuma, as found by Judge Nicholson.

Yet the Ginwala Report clears the former President of any responsibility for such illegal or improper conduct, and diverts attention from this central issue with vague and unsubstantiated allegations of Pikoli "lacking sensitivity to matters of national se curity".

On President Motlanthe`s decision to relieve Pikoli of his duties, COSATU agrees that there are very many strong grounds to justify the President`s decision, but he seems to have taken the right decision for the wrong reasons. He should have used the evide nce that COSATU, and Judge Nicholson, have provided, to dismiss him on charges of:

  • The failure to stop the Scorpions from conducting an illegal inquiry which led to the Browse Mole Report and then to take disciplinary action against those responsible.
  • Developing illegal intelligence gathering capacity within the Scorpions.
  • The use of unvetted staff when conducting search and seizure raids on sensitive buildings such as the Union Buildings and Tuynhuys.

Instead he reinforces the discredited Ginwala Report, saying that "Adv Pikoli had a lack of understanding of his responsibility to operate within a strict security environment, and to ensure that the NPA operated in a manner that took into account and did not compromise national security".

But that is not a matter that he was charged with, and neither the report nor the President offer any evidence to back up the charge that he lacks an "appreciation for and sensitivity to matters of national security".

The President, by echoing these weak reasons for dismissing Pikoli and ignoring the much more serious and proven acts of illegal behaviour by both the former government and the NPA is, unwittingly, endorsing the cover-up of illegal executive interference. He may also be helping the NPA to win its appeal against Judge Nicholson`s ruling, by arguing that the Ginwala report exonerates the government and the NPA of the judge`s charges.

Patrick Craven (National Spokesperson)

Congress of South African Trade Unions

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