‘Motlanthe distorted report’
Johannesburg - Axed national prosecutions director Vusi Pikoli argues that former president Kgalema Motlanthe distorted and manipulated a report on whether he was fit to hold office.
This occurred when Motlanthe recommended Pikoli's dismissal, according to the latest exchange of legal papers in his challenge to being fired.
In the papers, released by Pikoli's lawyers on Thursday, it is argued that Motlanthe's citing of what he calls the "two week one week" conversation as a reason to fire him, was incorrect.
He argues that the report on last year's inquiry, led by Frene Ginwala, did not make a finding on that matter because it had not been asked to do so.
‘Two week one week’ conversation
The "two week one week" conversation occurred between Pikoli and then president Thabo Mbeki in 2007 when Pikoli told Mbeki that he had warrants of arrest for national police commissioner Jackie Selebi and intended executing them, as well as search warrants for his office and home within a week.
Mbeki had said two weeks would be better to prepare the security forces for the arrest of a senior and to prevent any negative actions by them.
Pikoli said this conversation was never in the terms of reference in the inquiry into his fitness to hold office after he was suspended.
He was suspended in September 2007 with the initial reason that there was an irretrievable breakdown in the relationship between himself and former justice minister Brigitte Mabandla. He believes it was to stop the arrest of Selebi.
One paragraph in report
Pikoli argues that Ginwala recommended that Pikoli be restored to office as she could not find anything to support the charge that he was not fit to hold office.
However, Pikoli said that Motlanthe justified recommending to Parliament that he be fired because of one paragraph in her report relating to the time frame conversation which read: "Had these facts been presented as the reason for the suspension, when the conduct would have held a real risk of undermining national security, I would not have hesitated to find the reason to be legitimate. However, these were not the reasons put forward by government."
When Pikoli was fired in December, Motlanthe said it was because his conduct in relation to national security issues indicated a clear lack of insight.
In the legal papers, Pikoli said: "I accordingly submit that President Motlanthe's use of Dr Ginwala's report to justify the opposite conclusion that I was no longer fit for office, was based on a distortion and manipulation of her report which was quite unjustified."
No security risk
He continued: "By misconstruing Dr Ginwala's report in this way, President Motlanthe elevated her concern about my 'two weeks - one week' conversation with President Mbeki to the principal ground for my removal from office by misconstruing it and by ignoring Dr Ginwala's own reservation about it.
"The fact of the matter is that it was not part of the charges against me and I was never called upon nor afforded a proper opportunity to rebut it."
He said that Motlanthe conceded that Ginwala did not find that his conduct had created a security risk "but now contends that she had found 'that it had the potential to do so' ". However, Pikoli argues that she "did not make any such finding".
He said that before he was suspended, neither Mbeki nor Mabandla discussed the need for more time, which they could have, and he would have been open to persuasion.
Ginwala ‘a loyal ANC member’
Using this conversation to justify firing him was a "contrived afterthought when all else had failed", Pikoli claimed.
He said that Ginwala should not have raised the concerns about this conversation in her final report, because she was never called on to consider them.
He said that although Ginwala acted in good faith, "It must however be borne in mind that she is not a professional fact-finder and is on the contrary a loyal member of the party of which President Mbeki was the leader at the time of her appointment".
"She received her mandate from him and performed her functions at his pleasure and for his benefit. Any suggestion that her enquiry was accordingly ‘professional’ or ‘independent’ is quite out of place."