A ‘straight shooter’s’ fall from grace

2009-02-13 00:00

Advocate Vusi Pikoli, in the green leather seat in the front row of the old National Assembly Hall, smiled when he looked up from his notes at IFP chief whip Koos van der Merwe.

This was shortly after his submission last month to the parliamentary multiparty committee charged with deciding his future — ironically enough, in the same venue in which the Scorpions were dealt their death blow.

Advocate Wim Trengove, the state attorney in Jacob Zuma’s trial and also Pikoli’s legal representative, was sitting next to him.

“Tell us why,” began Van der Merwe. “Give us the real reason: who hates you so much that they are pushing you out in this way? You, with the impeccable struggle past. Why?”

Pikoli laughed, and looked at his former comrades in the ANC benches to his right and then down at his notes. Both he and they knew why. As a Pretoria advocate said, “Pikoli is a straight shooter. You can’t swing him.”

And the post-Polokwane ANC cannot, in fact, afford straight shooters. Not now, with Zuma, still under a cloud, a whisker away from the presidency.

Pikoli was peppered with questions by the ANC. Questions without any clear purpose and without any strong relation to the findings of the investigation into his suitability as national director of public prosecution (NDPP).

After the afternoon recess, when ANC MPs heartily embraced him, calling him “chief” and “brother”, the frustration started taking its toll. Pikoli buried his head in his hands, sat like that for a little while, then looked up at the ceiling. It was as if he was starting to resign himself to his fate, since it was clear that the ANC did not intend showing any mercy.

Just as with the Scorpions …

The parliamentary process that had to reject or ratify President Kgalema Motlanthe’s decision in December last year to sack Pikoli was suspect from the outset.

Not only did the ANC’s chief whip, Nyami Booi, indicate that the process would serve as a precursor for possible changes to the National Prosecution Authority (NPA) Act, but the party’s National Working Committee (NWC) issued a statement supporting Motlanthe’s decision literally while Pikoli was still testifying before the multiparty committee.

And the ANC’s parliamentary caucus isn’t exactly known for thinking independently about matters.

Furthermore, the ANC also saw fit to appoint someone convicted of trying to bribe policemen (when he was caught in possession of a stolen vehicle) as one of the two chairpersons of the multiparty committee.

There are clear similarities between the way in which they got rid of Pikoli and the way the Scorpions were scuppered by the ANC:

• Just as with the Scorpions, it was found in an investigation with a presidential mandate that in Pikoli’s case the status quo should be maintained.

• Just as with the Scorpions’ investigations into senior ANC leaders, Pikoli was on the track of a clearly corrupted ANC figure.

• And just as with the Scorpions, the ANC’s ratification of a dubious decision was based on weak, transparent reasons and motives.

Regarding the first point, it was unequivocally found in Dr Frene Ginwala’s report that Pikoli was fit to be the NDPP and that he should be reinstated. While she agreed with the state on a number of minor allegations against Pikoli, she rejected the major charges against him.

At the time, Judge Sisi Khampepe also made a number of findings about where the Scorpions had erred, including the unit’s unauthorised information gathering. Despite that, she also recommended that the unit should stay where it was, provided that some changes and adjustments were made.

However, in the parliamentary process that followed, this was rejected and the Scorpions were simply steamrolled out of the way by the ANC.

“It’s illegal”

Pikoli was suspended (and is now on the verge of being sacked) because he is independent and was not prepared to be told what to do. Just as he was not prepared to be influenced in his investigation into Commissioner Jackie Selebi, he would also probably have ignored the background noise in the investigation into Zuma.

Pikoli had his 10th and last meeting with former president Thabo Mbeki about Selebi in mid-September, 2007 at the Union Buildings in Pretoria. He told the head of state he was ready with arrest and search warrants relating to Selebi’s alleged involvement in the Glenn Agliotti and Brett Kebble debacle.

Mbeki said that was in order, but that Pikoli should postpone action by two weeks so that he could make the necessary preparations. Pikoli was opposed to this and granted Mbeki one week’s postponement.

Two days later, Mbeki wrote to Justice Minister Brigitte Mabandla, asking her to obtain more details about the Selebi investigation from Pikoli.

However, the next day Mabandla handed a letter to Pikoli in which she ordered him not to proceed with the prosecution of Selebi. She wrote: “Until I have satisfied myself that sufficient evidence exists [for the arrest and charging of Selebi], you shall not pursue the route that you have taken steps to pursue.”

Pikoli informed her that he had no problem with furnishing the president with the necessary information, and added: “Lastly, your letter could be interpreted as an instruction to the NPA not to continue with the arrest of, and institution of charges against, Selebi until you are satisfied that the evidence and information justify such a decision and that it is in the public interest.

“With all due respect, may I point out that if this is indeed such an instruction, it would be illegal. It would put me in a position where I would have to act contrary to my oath of office, as well as my duties as stipulated by the Constitution and the NPA Act. I trust, however, that that is not your intention and that you understand that we have a constitutional obligation to promote and protect the independence of the prosecuting authority.”

She responded by requesting a full report on the Selebi investigation and Pikoli met with her on September 23 to discuss this. She then asked him to resign because the working relationship between them had “irretrievably broken down”.

Pikoli rejected this, saying he could not resign, because he submits to the rule of law and because the Constitution ensures the independence of prosecutors.

On the same day, Mbeki asked him to resign. When he refused, Mbeki immediately had a letter written in which Pikoli was informed that he was suspended.

The lifeline

The reason given to leaders of the opposition by Reverend Frank Chikane, director-general in the presidency, for Pikoli’s suspension was that a breach of trust had arisen between Pikoli and Mabandla.

But the parliamentary ad hoc committee that voted on Pikoli last Wednesday heard a series of other reasons and its ANC component did its best to sell these arguments as gospel.

The ANC was in a predicament before the start of the activities, and the fly in the ointment was the Ginwala report. Yes, there were some negative findings in the report, but these were not in themselves sufficient to get rid of Pikoli.

However, Motlanthe forced open a door left a fraction open by Ginwala, and the ANC in Parliament, led by Yunus Carrim (chairman of the committee that dismantled the Scorpions), stormed through it.

Ginwala had found in her report that Pikoli had not given Mbeki enough time to prepare for Selebi’s arrest. She continued by saying that if that was put forward as a reason for Pikoli’s suspension, “and where it posed a threat to national security”, she would have accepted Mbeki’s reasons for the suspension. The problem, however, was that it was never put forward as the reason for the suspension, it wasn’t part of the commission’s frame of reference for the investigation and it was never quoted anywhere as a reason.

During his appearance before the ad hoc committee, Chikane, supported by new Justice Minister Enver Surty and the ANC caucus, made a big issue of the remaining supposed reason for Pikoli’s demise: national security.

Speaker after speaker repeated it: Pikoli was not sensitive to matters of national security and South Africa simply could not afford that in an NDPP.

Despite Chikane’s and Surty’s obviously put-on discomfort at the way they were lashing their “dear friend”, “colleague” and “fellow-struggler”, they did not hesitate to toss this lifeline (as Van der Merwe referred to the issue of national security) out to the ANC.

So Pikoli was suspended, tried and found guilty for something that had never been an issue before, something never mentioned to him as being a possible problem; and for the danger that he might pose to the country’s security should something possibly happen.

And no one could explain exactly what the nature of these “issues of national security” were, because, after all, that was exactly what they were: issues of national security.

Whereas during the Scorpions hearings the ANC still tried to put forward plausible arguments and reasons why the unit should have its neck wrung, they did not even try and pretend in this round.

The result?

The National Assembly ratified the dismissal of prosecutions chief Vusi Pikoli yesterday, after a raucous debate in which the opposition warned he would win a reprieve in court. Pikoli’s fate will be sealed and President Kgalema Motlanthe free to appoint his successor if, as expected, the National Council of Provinces, also endorses the decision to fire him.

Cabinet uses three issues for sacking Pikoli

The ANC put forward three arguments to try to prove that Vusi Pikoli was not sensitive enough to “issues of national security”:

• The Browse Mole report

Background: This report was a conglomeration of gossip stories and fiction put together by the Scorpions. Among other things it gave details of a coup d’état by Jacob Zuma on the government of Thabo Mbeki and was later exposed as false.

Pikoli did not respond to the preliminary report.

The ANC says: That was unacceptable, and Bulelani Magwanishe and Cecil Burgess got stuck into Pikoli for the “lax” manner in which he handled it. According to them, the mere fact that such a report existed was a threat to national security and it should have been urgently investigated.

Pikoli says: He did not just conceal the report and allow it to gather dust as the ANC alleges, but immediately called a meeting with the heads of the National Intelligence Agency and the South African Secret Service.

• Seven days instead of 14

Background: Pikoli was repeatedly accused that his handling of this issue was the best example of his indifference.

When he told Mbeki that he was ready to execute arrest and search warrants against Selebi, Mbeki asked him for two weeks’ postponement to make the necessary preparations.

Given the nature of the investigation, Pikoli refused and gave Mbeki only a week.

The ANC says: Pikoli did not want to give Mbeki enough time to defuse and correctly manage a possibly explosive situation.

Reverend Frank Chikane, Mbeki’s office chief, told Parliament that Mbeki had to suspend Pikoli because had he summarily gone ahead with serving the court orders on Selebi it would have resulted in “war” between the Scorpions and the police.

Pikoli says: It was never an issue and neither Mbeki nor Chikane had objected to the one week granted by Pikoli.

When the media asked Chikane, after his submission to the parliamentary ad hoc committee, why Pikoli had not been informed of the objection and how serious a threat the conflict between the Scorpions and the police was, he hurried off without answering the questions.

• The search warrants

Background: In 2005, 20 premises connected to Zuma were searched in terms of a court order. During the raids on his offices in Tuynhuys and the Union Buildings, mirror images were made of computers by a private security company doing contract work for the Scorpions.

The ANC says: The fact that a private company was used to conduct raids on the office of the then deputy president was further evidence of Pikoli’s approach. The ANC, and Chikane, maintained that the company could have been infiltrated by hostile powers and sensitive information would then have been out in the open. In addition, Ginwala found that Pikoli had not made the necessary arrangements with the presidency or minister of justice.

Pikoli says: The use of the private company was brought up only during the Ginwala investigation and had not been questioned before or after the raids.

Pikoli also argued that he had informed Mbeki, his deputy, Chikane and the minister of justice of his plans and that a senior member of the Scorpions had been appointed to manage the operation.

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