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SUBMISSIONS TO THE PRESIDENT

MR PIKOLI’S FITNESS FOR OFFICE

by

Wim Trengove SC, Tim Bruinders SC and Benny Makola

instructed by

Aslam Moosajee of Deneys Reitz


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TO THE PRESIDENT
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CONTENTS

INTRODUCTION................................................................................................ 3

MR PIKOLI WAS VINDICATED ......................................................................... 5

HIS ACCUSERS WERE DISGRACED .............................................................. 7

THE ENQUIRY PROTECTED THE MINISTER AND THE PRESIDENT ......... 12

THE ADVERSE FINDINGS .............................................................................. 20


Introduction ................................................................................................... 20
The listing of the DSO................................................................................... 20
The search at the Union Buildings ................................................................ 21
The Malawi investigation............................................................................... 24
The Browse Mole Report .............................................................................. 26
The Selebi arrest and prosecution ................................................................ 28
Mr Pikoli’s understanding of broader considerations .................................... 36
Mr Pikoli is fit for office .................................................................................. 37
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TO THE PRESIDENT
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INTRODUCTION

1. Dr Ginwala has now reported to the President on her enquiry into Mr Pikoli’s

fitness for office in terms of s 12(6)(a) of the National Prosecuting Authority Act

32 of 1998. The President has to decide whether to remove Mr Pikoli from office

or lift his suspension and restore him to office. These are Mr Pikoli’s submissions

to the President on that decision. We submit with respect that Mr Pikoli is fit for

office and that the enquiry has completely vindicated him. There is no basis for

his removal from office. The President is urged to lift his suspension and restore

him to office without delay.

2. Our submissions address the following topics:

2.1. The vindication of Mr Pikoli. The enquiry has vindicated him, found no

basis to doubt his fitness for office and recommended that he be

restored to office.

2.2. His principal accusers were disgraced and the case against him

discredited. The Minister was the government’s principal witness on a

number of crucial disputes. She chose not to give evidence. The

inference is that her evidence would not have withstood the scrutiny of

cross-examination. The DG gave evidence in her stead. He was

however discredited. The enquiry found him to be conniving and

dishonest and that he had bedevilled Mr Pikoli’s relationship with the

Minister.
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2.3. The enquiry was unduly protective of the Minister and the President.

Some of its findings against Mr Pikoli were a manifestation of its

determination to protect the Minister and the President. They should

be judged in that light.

2.4. We address each of the findings adverse to Mr Pikoli. We submit in

the first place that they were wrongly made. We submit in any event

that, even if they were correctly made, they do not reflect on Mr Pikoli’s

fitness for office. The enquiry itself held that, despite its findings

against Mr Pikoli, he has not been shown to be unfit for office. It is

neither competent nor appropriate to remove him from office.

3. We addressed all the contentious issues in our final submissions to the enquiry.

A copy of those submissions accompany these submissions. We will from time

to time cross-refer to them rather than repeat what they say.


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MR PIKOLI WAS VINDICATED

4. The NDPP may only be removed from office on the grounds listed in s 12(6)(a) of

the NPA Act. The only ground on which the government contended Mr Pikoli

should be removed from office, was that he was “no longer a fit and proper

person” to hold the office of NDPP. This was the subject of Dr Ginwala’s enquiry.

She concluded that the government had failed to substantiate any of the reasons

given for Mr Pikoli’s suspension and that he should “be restored to the office of

NDPP”. 1 We submit for the reasons that follow that she was correct in this

conclusion.

5. Section 9(1)(b) of the NPA Act tells us that the question whether someone is “a fit

and proper person” to hold office as NDPP, must be determined with due regard

to his “experience, conscientiousness and integrity”. Mr Pikoli’s experience has

never been in doubt. He is vastly more experienced today than he was when the

President first appointed him. The remaining questions are whether he is

sufficiently conscientious and of such integrity as is required by the office of

NDPP.

6. The enquiry completely vindicated Mr Pikoli on this score. It not only concluded

that the government had failed to impugn Mr Pikoli’s fitness for office but also

specifically vindicated his integrity and conscientiousness. It repeatedly held that

Mr Pikoli,

- “impressed me as a person of unimpeachable integrity”; 2

1
Report p 212 para I
2
Report p 69 para 95
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- “impressed me as a man of unquestionable integrity, with passion to

execute his constitutional responsibilities without fear, favour or

prejudice” 3 , and

- “impressed me as a person of unimpeachable integrity and credibility”. 4

7. These findings are a resounding endorsement of Mr Pikoli’s fitness for office.

They leave no room for any suggestion that he is no longer fit for office. Nobody

can say that he lacks the integrity or is insufficiently conscientious for the office of

NDPP. He would be the first to admit that he is not perfect, that he makes

mistakes and that he must always strive to do better. But nobody can say that he

is no longer fit for office.

3
Report p 177 para 284
4
Report p 185 para 296
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HIS ACCUSERS WERE DISGRACED

8. The Minister and the DG of Justice were Mr Pikoli’s main accusers. The irony is

that, while he was vindicated by the enquiry, they were disgraced, the Minister by

her failure to give evidence and the DG by the damning findings on his conduct

and his evidence.

9. The Minister’s evidence was pivotal to the government’s case against Mr Pikoli.

She was the government’s main complainant. Her evidence was contested on a

number of crucial issues. The enquiry called for oral evidence to test and weigh

the competing versions against each other. The Minister chose not to give oral

evidence and have her version tested in cross-examination. It was tantamount to

an admission that her accusations against Mr Pikoli could not withstand the

scrutiny of cross-examination.

10. The Minister’s failure to come forward and give evidence in support of her own

accusations was particularly significant because her evidence was crucial to the

government’s case against Mr Pikoli:

10.1. The Minister ordered Mr Pikoli in her letter of Tuesday 18 September

2007 to stop the arrest and prosecution of Mr Selebi. The instruction

was unlawful, unconstitutional and a criminal offence. 5

10.2. The Minister denied on affidavit that she had intended to interfere with

Mr Pikoli in the performance of his functions as NDPP. But she then

5
Report p 177 paras 285 to 289
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declined to let her denial be tested under cross-examination. It was

tantamount to an acknowledgment that her denial could not withstand

scrutiny.

10.3. When Mr Pikoli refused to obey the Minister’s instruction, she

responded on Sunday 23 September 2007 by asking him to resign. It

is clear that she wanted him to resign because he had refused to obey

her order to stop the arrest and prosecution of Mr Selebi. If there was

an innocent explanation for her request, she would have given it. Her

failure to do so means there was none.

10.4. When Mr Pikoli asked the Minister on Sunday 23 September 2007 why

she wanted him to resign, she said it was because their relationship

had broken down. Government later repeated this explanation in the

letter of suspension, in their public statements on Mr Pikoli’s

suspension and in the enquiry. Mr Pikoli denied that it was true. He

challenged the Minister on it when she first made the suggestion and

has since then persisted in his denial that his relationship with the

Minister had broken down. Only the Minister could have supported

government’s case on this score. She failed to do so. The explanation

was plainly untrue. The Minister’s relationship with Mr Pikoli had never

broken down. This is indeed what the enquiry found. 6

10.5. Mr Pikoli saw the President on Sunday 23 September 2007

immediately after he had declined the Minister’s request for his

6
Report p 7 para 11.1, p 61 paras 81 to 96 and p 191 paras 308 to 311
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resignation. The President repeated the request. When Mr Pikoli

again declined, the President suspended him. He appears to have

acted on the Minister’s advice because he explained in his letter of

suspension that the Minister “has also drawn my attention to the

breakdown of relations between your office and hers”. Mr Pikoli

appears to have been suspended on the Minister’s advice to achieve

what her instruction to him on the Tuesday and her request for his

resignation on the Sunday had failed to achieve, to stop his arrest and

prosecution of Mr Selebi. If there was an innocent explanation, the

Minister would have given it. Her failure to do so means that there was

none.

11. Instead of giving evidence herself, the Minister sent in the DG to give evidence

on the government’s behalf. He was also an important complainant in his own

right, second only to the Minister. He drafted the Minister’s letter of 18

September 2007 ordering Mr Pikoli to stop the arrest and prosecution of Mr

Selebi. He also drafted government’s submissions of complaint against Mr Pikoli

in the enquiry. He became government’s main witness when the Minister chose

not to give oral evidence.

12. The enquiry however found him to be conniving and dishonest. 7

12.1. He bedevilled Mr Pikoli’s relationship with the Minister. 8

7
Report p 12 paras 14 to 15, p 100 paras 153 to 160 and p 195 paras 317 to 322
8
Report p 12 para 14 and p 191 para 309
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12.2. He made numerous baseless accusations against Mr Pikoli. 9

12.3. He arrogated powers to himself which he did not have. It brought him

into conflict with Mr Pikoli. The DG obtained an opinion from senior

counsel who disagreed with him and agreed with Mr Pikoli. The DG

however ignored the opinion, concealed it from Mr Pikoli, did not

disclose it to the enquiry and tried to conceal it by lying about it under

oath. 10

12.4. He prepared the Minister’s letter to Mr Pikoli on 18 September 2007

ordering him to stop the arrest and prosecution of Mr Selebi. The

enquiry held that this conduct “was reckless to say the least” and that

the letter was “tantamount to executive interference with the

prosecutorial independence of the NPA, which is recognised as a

serious offence in the Act”. 11

12.5. The enquiry concluded that the DG’s conduct had been “highly

irregular”, that his suppression of information was “not consonant with

the responsibilities of a senior state official”, that his evidence had

been “contradictory” and that his attitude to Mr Pikoli had been

“arrogant and condescending”. 12

9
Report p 12 para 15
10
Report p 100 paras 153 to 155 and p 104 para 158
11
Report p 105 para 159 read with p 177 paras 285 to 289
12
Report p 103 para 157
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12.6. His personal views informed his formulation of government’s

complaints against Mr Pikoli. They were replete with baseless

accusations he had to retreat under cross-examination. 13 The

Commission concluded that all these complaints “were spurious, and

are rejected without substance, and may have been motivated by

personal issues”. 14

13. We submit that both Mr Pikoli’s main antagonists were disgraced, the Minister by

her failure to give evidence and the DG by the condemnation of his conduct and

his evidence. Their disgrace stripped the government’s case against Mr Pikoli of

any credibility.

13
Report p 104 para 158, p 106 para 160, p 195 paras 320 to 322
14
Report p 196 para 321
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THE ENQUIRY PROTECTED THE MINISTER AND THE PRESIDENT

14. The enquiry was overly protective of the Minister and the President. It bent over

backwards to protect them. It was perhaps to be expected seeing that the

enquiry derived its mandate from the President, undertook the investigation for

him and reported back to him. He was its principal all along. The problem

however is that it skewed the enquiry’s views and informed some of its findings

against Mr Pikoli.

15. A good example of the way in which the enquiry’s determination to protect the

Minister and the President skewed its findings, is its treatment of Mr Pikoli’s

accusation that the real reason for his suspension was to stop his arrest and

prosecution of Mr Selebi.

16. Mr Pikoli put this accusation at the forefront of his case because it reflected on

the credibility of his suspension. He said in the opening paragraphs of his

original affidavit that there was only one reason for his suspension and that was

to put a spoke in the wheels of the investigation and prosecution of Mr Selebi. 15

He repeated this accusation in his oral evidence. 16 He persisted in it in his

counsel’s closing submissions. 17

17. The run-up to Mr Pikoli’s suspension made it quite clear that its purpose was to

put a spoke in the wheels of Mr Pikoli’s plan to arrest and prosecute Mr Selebi.

15
Pikoli Answer p 2 paras 6 to 7
16
Pikoli Evidence pp 659 and 755 to 756
17
Pikoli Final Submissions p 29 paras 47 to 70 read with p 39 paras 71 to 92
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We described this run-up in our final submissions in the enquiry from page 29 in

paragraphs 47 to 70. We point to some of its highlights:

17.1. Mr Pikoli told the President on 15 September 2007 that the DSO had

obtained warrants to arrest Mr Selebi and search his premises. The

President was surprised by this news. He asked Mr Pikoli to give him

two weeks to make the arrangements necessary for the execution of

the warrants. Mr Pikoli responded that two weeks were too long but

that he would delay the execution of the warrants for a week. The

President did not quibble or engage with Mr Pikoli on the issue.

17.2. The President addressed a letter to the Minister on Monday 17

September 2007 requesting particulars of the planned arrest and

prosecution of Mr Selebi to enable him to take such decisions as might

be necessary. He did not suggest he had been given insufficient time

to do so.

17.3. On Tuesday 18 September 2007 the Minister handed Mr Pikoli the

letter in which she ordered him to stop the arrest and prosecution of Mr

Selebi.

17.4. It is clear from this account that there was a rupture on the Monday or

the Tuesday between Mr Pikoli’s discussions with the President

culminating in the President’s letter to the Minister on the Monday on

the one hand, and the Minister’s instruction to Mr Pikoli on the

Tuesday to stop the arrest and prosecution of Mr Selebi on the other.

The rupture has never been explained. We do not know whether the
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Minister took the initiative to stop the arrest and prosecution of Mr

Selebi or whether the President instructed her to do so. What we do

know is that the Minister was suddenly and inexplicably determined to

stop the arrest and prosecution of Mr Selebi.

17.5. Mr Pikoli informed the Minister on Wednesday 19 September 2007 that

he could not comply with her instruction to stop the arrest and

prosecution of Mr Selebi:

“I wish to point out respectfully that if indeed it were an

instruction, it would be unlawful. It would place me in a position

where I would have to act in breach of the oath of office I took

and of my duties under the Constitution and the NPA Act.” 18

17.6. Mr Pikoli met with the Minister late Sunday afternoon 23 September

2007. She asked him to resign because she said there had been a

breakdown of trust between them. He was shocked by this statement

because they had always had a cordial relationship. He declined to

resign.

17.7. Mr Pikoli met with the President shortly thereafter in the early evening

on Sunday 23 September 2007. The President knew about Mr Pikoli’s

refusal to heed the Minister’s request that he resign. The President

told him that he would suspend him if he did not resign. Mr Pikoli

persisted that he was not prepared to resign. The President then

suspended him.

18
Pikoli letter 19 September 2007 VP13 p 6 para 3
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17.8. The day of Mr Pikoli’s suspension was the last day of the week for

which he had agreed to delay the arrest and prosecution of Mr Selebi.

He was due to proceed with it the following day.

18. We submit that this sequence of events leaves no room for any inference other

than that Mr Pikoli was suspended to stop the arrest and prosecution of

Mr Selebi. The inference is reinforced by the fact that the government put

forward reasons for Mr Pikoli’s suspension which were plainly spurious:

18.1. They said in their letter of suspension and in their public statements

that Mr Pikoli had been suspended because of the breakdown of his

relationship with the Minister. This was spurious. We discussed it in

our final submissions to the enquiry from page 39 in paragraphs 71 to

77. The enquiry held that government had not shown the relationship

between Mr Pikoli and the Minister to have broken down. 19 But even if

their relationship had broken down, the suggestion that the breakdown

precipitated Mr Pikoli’s suspension on the eve of his arrest and

prosecution of Mr Selebi, is absurd.

18.2. The other reason for Mr Pikoli’s suspension mentioned in the

President’s letter of suspension, was that the President had received

information which showed that Mr Pikoli had “entertained the granting

of immunity to members of organised crime syndicates in instances

where the prosecution of such people would, in the government’s view,

19
Report p 61 paras 81 to 96 and p 191 pars 308 to 311
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be in the public interest”. We discussed this suggestion in our final

submissions in the enquiry from page 42 in paragraphs 78 to 83. The

government abandoned part of this complaint in the enquiry and did

not pursue the remainder of it with any vigour. The complaint was in

any event dismissed. 20 But even if there was substance to the

complaint, the suggestion that it suddenly surfaced and caused

Mr Pikoli’s suspension on the eve of his arrest and prosecution of

Mr Selebi, cannot be seriously made.

19. The government subsequently raised many further complaints in their attempt to

justify Mr Pikoli’s suspension. The enquiry however dismissed all of them. 21 It

concluded that,

“the basis advanced by government for the suspension of Advocate

Pikoli has not been established through the evidence submitted to the

enquiry”. 22

20. This evidence only leaves room for one conclusion. The circumstances of his

suspension made it clear that its purpose was to frustrate his plan to arrest and

prosecute Mr Selebi. This inference is fortified by government’s inability to give

an innocent explanation for his suspension and the fact that it put forward false

reasons instead. The enquiry should have concluded that Mr Pikoli was

suspended for an ulterior purpose.

20
Report p 7 para 11.2, p 71 paras 97 to 108 and p 192 paras 312 to 316
21
Report p 190 paras 306 to 349
22
Report p 206 para 349
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21. In its determination to protect the Minister and the President however, the enquiry

went on to speculate on government’s behalf that there were circumstances

suggesting that Mr Pikoli was suspended for other reasons:

21.1. The enquiry pointed out that the Minister and the President had until

then been supportive of the investigation of Mr Selebi and had done

nothing to frustrate it. 23 That was so but it was proved beyond doubt

that, in the days leading up to Mr Pikoli’s suspension, their attitude

changed and they took desperate measures to stop Mr Selebi’s arrest

and prosecution. The Minister instructed Mr Pikoli on Tuesday 18

September 2007 not to proceed with the arrest and prosecution. He

was suspended a mere five days later when he refused to obey her

instruction. It is clear beyond doubt that, whatever her attitude might

previously have been, the Minister’s conduct in the critical days leading

up to Mr Pikoli’s suspension was driven by a clear determination to

stop the arrest and prosecution of Mr Selebi. The President in turn

acted on the Minister’s advice.

21.2. The enquiry secondly pointed out that Mr Selebi’s arrest and

prosecution have gone ahead in early 2008. 24 But it is for the Minister

to explain why she was determined to stop Mr Selebi’s arrest and

prosecution in September 2007 but prepared to let it go ahead in early

2008. She has failed to give any explanation for it. It is not for the

enquiry to speculate on her behalf that it demonstrates her innocence

23
Report p 175 para 283
24
Report p 176 para 284
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all along. It must be borne in mind that Mr Selebi was only arrested

and prosecuted,

- after the ANC’s Polokwane conference where the President was

a candidate for re-election as President of the ANC and Mr

Selebi was reported to be one of his supporters;

- after much speculation in the media that Mr Pikoli had been

suspended to protect Mr Selebi; and

- after an independent panel had agreed with Mr Pikoli and the

NPA that Mr Selebi should be prosecuted.

It is hardly surprising that government no longer stood in the way of the

prosecution of Mr Selebi in those circumstances.

21.3. The enquiry lastly speculated that Mr Pikoli’s suspension might have

been precipitated “by the need to avert the possible threat to national

security that may have resulted if the warrants were executed before

an enabling environment was created”. 25 We later deal with this

suggestion more fully. It is no more however than speculation by the

enquiry in defence of the Minister and the President. The evidence on

which it is based, is that the President asked Mr Pikoli on Saturday

15 September 2008, to suspend the execution of the warrants for two

weeks to allow him to make the necessary arrangements. Mr Pikoli

replied that two weeks was too long but that he would suspend the

execution of the warrants for a week. If it was inadequate, the

President would have engaged with Mr Pikoli on the issue there and

then or at some time in the course of the following week or at the very

25
Report p 206 para 348
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latest before he suspended him the following Sunday. But he never

made any mention of it again. His letter of suspension did not suggest

that it played any part in Mr Pikoli’s suspension at all. The enquiry’s

speculation that it might nonetheless have been the reason for Mr

Pikoli’s suspension is thus sheer speculation in defence of the Minister

and the President.

22. We submit that the enquiry was unduly protective of the Minister and the

President. Its findings against Mr Pikoli should be seen in that light. The enquiry

vindicated Mr Pikoli but, in its efforts to protect the Minister and the President,

made adverse findings against him which were unjustified.


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THE ADVERSE FINDINGS

Introduction

23. We will address each of the enquiry’s findings against Mr Pikoli. We submit that

they were wrong, more often than not as a result of the enquiry’s determination to

protect the Minister and the President. After we have addressed each of these

findings however, we will in any event submit that, even if they were correct, they

do not reflect adversely on Mr Pikoli’s fitness for office. They are no more than

differences of opinion between the enquiry and Mr Pikoli on the manner in which

he ought to have performed his functions as NDPP. At worst for Mr Pikoli, he

might have been mistaken in the way he performed his functions. But that is to

say only that he is human. It is a far cry from saying that he is no longer fit for

office.

The listing of the DSO

24. The facts were that the DSO was an unlisted “public entity” within the meaning of

the Public Finance Management Act 1 of 1999. Section 47(2) of the PFMA

provides that the accounting authority of an unlisted public entity “must, without

delay, notify the National Treasury, in writing, that the public entity is not listed”.

Mr Pikoli repeatedly tried to explain to the Minister that this provision obliged

them to notify Treasury “without delay” that the DSO was an unlisted public entity.

He did so in a memorandum of 28 March 2006, a meeting on 11 June 2006, a

second memorandum of 7 August 2006 and a third memorandum of 13

September 2006. When the Minister did not respond to the third memorandum,
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Mr Pikoli sent the notification to Treasury in compliance with s 47(2) on 24

November 2006.

25. The enquiry correctly held that Mr Pikoli cannot be faulted for notifying Treasury.

They were by law obliged to do so “without delay”. It merely commented that Mr

Pikoli should have advised the Minister that he was proceeding to do so. It

added that this incident took place in November 2006 and had never been raised

with Mr Pikoli as a complaint before. 26

26. We submit that this finding is trivial. We dealt with it from page 112 in paragraphs

210 to 227 of our final submissions to the enquiry. Mr Pikoli might have advised

the Minister, as a matter of courtesy but no more, that he was proceeding to give

the notice which the law required to be given “without delay”. But the Minister

cannot complain of discourtesy in the light of the disdain she displayed for Mr

Pikoli’s repeated representations over a period of many months.

The search at the Union Buildings

27. The enquiry expressed mild criticism of three aspects of Mr Pikoli’s conduct in

relation to the search of the Deputy President’s offices at the Union Buildings in

August 2005. The DSO did the search as part of the nationwide searches of

premises associated with the former Deputy President Mr Zuma. We described

these events in our final submissions in the enquiry from page 62 in paragraphs

99 to 116.

26
Report p 8 para 11.4, p 112 paras 169 to 170 and p 197 paras 323 to 324
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28. The team responsible for the investigation of the case against Mr Zuma obtained

warrants to search more than 20 premises associated with Mr Zuma countrywide.

One of the warrants was for a search of Mr Zuma’s former offices at the Union

Buildings when he was Deputy President. After the warrants had been obtained

but before they were executed, Mr Pikoli called successively on the President,

the Deputy President, the Minister of Justice and the DG in the Presidency

Reverend Chikane, to inform them of the impending search and to make sure

that all the arrangements were in place for its due and proper execution. None of

them raised any objections, reservations or pre-conditions at the time. Mr Pikoli

and Reverend Chikane agreed that Mr Pikoli would deputise a member of his

staff Advocate Nel to liaise with Reverend Chikane to put all the practical

arrangements in place. They in fact did so and Mr Nel reported to Mr Pikoli that

he had met with Reverend Chikane and that they had made all the necessary

arrangements for the search.

29. The enquiry held that Mr Pikoli should have informed the Minister of his intention

to apply for the search warrant before it was issued. It said that his failure to do

so was “a dereliction of duty on his part”. 27 We dealt with this complaint from

page 62 in paragraphs 101 to 105 of our final submissions in the enquiry. We

submit that the complaint is absurd. Mr Pikoli informed the Minister of the

warrants before they were executed. He did so at a time when their execution

was still entirely under his control. He could still address any objection,

reservation or pre-condition the Minister might raise. He would have been in a no

better position to do so if he had informed the Minister of the plan before the

warrants were issued. The Minister did not complain or suggest there was any

27
Report p 10 para 11.9 and p 140 para 222
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reason to delay the execution of the warrants. She did not raise any objection,

reservation or pre-condition at all. The complaint some three years later can

clearly not be taken seriously. The enquiry’s criticism is a stark manifestation of

its partiality to the Minister.

30. The second point of criticism raised by the enquiry was that Mr Pikoli did not do

enough to ensure the security of the documents of the Presidency. It accepted

however that there had not in fact been any breach of security during the search

at the Union Buildings. 28 Its criticism was unfair and again a manifestation of the

enquiry’s inclination to be overly protective of the Presidency. We addressed this

complaint from page 64 in paragraphs 106 to 116 of our closing submissions to

the enquiry. The facts were that Mr Pikoli agreed with Reverend Chikane that he

would deputise Mr Nel to meet with Mr Chikane to make all the practical

arrangements for the search including all the security arrangements. Mr Nel

reported back to him that he had met with Reverend Chikane and that they had

put all the necessary arrangements in place. Mr Pikoli had no reason to think

that anything more needed to be done. Mr Nel explained that there was in fact

never any security risk at all. The only people who were given access to

classified documents were two DSO officers with top security clearances.

31. The enquiry lastly suggested that the search warrant was not justified or

appropriate in that the DSO could have obtained the documents from the

Presidency on request without resort to a search warrant. 29 But the government

never raised this complaint and Mr Pikoli was never called upon to address it. It

28
Report p 10 para 11.9, p 148 para 231 and p 202 para 339
29
Report p 141 paras 223 to 225
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is unfair to criticise him without affording him an opportunity to address the

criticism. We submit that the criticism is unfounded. A criminal investigation of

charges against an individual is not subject to the requirements of co-operative

government in s 41 of the Constitution relating to intergovernmental disputes. On

the contrary, when the DSO undertakes searches countrywide of both high

government offices and private premises, it is important that they act and are

seen to act without fear, favour or prejudice.

32. We submit that to suggest today, that Mr Pikoli’s fitness for office is suspect

because of these minor aspects of a search undertaken three years ago, is both

unfair and absurd. It is a manifestation of government’s attempt to justify Mr

Pikoli’s suspension after the event when it was in fact done without justification

and for an ulterior purpose.

The Malawi investigation

33. The DPP of Malawi sent a request to Mr Pikoli for assistance with their

investigation of a plot to assassinate the President of Malawi. The request was

for a mundane inquiry to determine whether the suspects had stayed at a

particular hotel on a particular day. Mr Pikoli quite properly referred the request

to the DG for Justice in terms of s 7(1) of the International Co-Operation in

Criminal Matters Act 75 of 1996. The matter was thereafter handled under the

control and direction of the DG for Justice in accordance with the ICCM Act.
PIKOLI / SUBMISSIONS 25
TO THE PRESIDENT
20.11.08

34. We dealt with these events from page 86 in paragraphs 149 to 162 of our final

submissions in the enquiry. We submit that Mr Pikoli’s handling of the matter

was flawless and entirely in accordance with the ICCM Act.

35. The enquiry however criticised Mr Pikoli for not informing the Minister of the

information he had received of the plot to assassinate the President of Malawi. 30

We submit that the criticism is unfounded:

35.1. Mr Pikoli was obliged to deal with the Malawian request for mutual

legal assistance in accordance with s 7(1) of the ICCM Act. It provides

that such a request “shall be submitted to the Director-General”, that

is, the DG of Justice. That is precisely what Mr Pikoli did.

35.2. Mr Pikoli was entitled to assume that the DG for Justice will take

whatever action needed to be taken on the request. To suggest that

he should have taken the initiative to do so is quite unfair.

35.3. Mr Pikoli was entitled to assume that the DG for Justice will deal with

the request in accordance with the ICCM Act. It provides in s 7(4) that

the DG “shall … submit the request … to the Minister”. Mr Pikoli was

accordingly entitled to assume that the DG for Justice will convey the

request including its disclosure of the Malawian plot to the Minister.

There was no need for him to inform her of it.

30
Report p 127 para 196, p 129 para 198 and p 199 paras 330 to 331
PIKOLI / SUBMISSIONS 26
TO THE PRESIDENT
20.11.08

35.4. That is in fact what happened. On 2 August 2006 the Department of

Justice reported to Mr Pikoli that the Minister’s “approval in terms of

s 7 of the International Co-Operation in Criminal Matters Act … to

render the necessary legal assistance to the Malawian authorities has

been obtained”. Mr Pikoli was entitled to conclude that the DG had

told the Minister of the request as he was obliged to do. The DG

indeed confirmed that he had referred the request to the Minister and

that she had given her approval for the investigation in terms of s 7(4)

of the ICCM Act.

The Browse Mole Report

36. A DSO operative undertook an intelligence gathering exercise on which he

reported in July 2006. His report became known as the Browse Mole Report. He

should not have done the investigation because it was an intelligence gathering

exercise beyond the mandate of the DSO. It is common cause that Mr Pikoli was

not aware and did not authorise the investigation. The Head of the DSO

Mr McCarthy first told him about it in March 2006. Mr McCarthy gave him a

preliminary draft of the report but told him that it was “work-in-progress” and

suggested that he file it and await the final report. The investigation had been

completed but the process of writing the report was still underway. Mr Pikoli

accepted Mr McCarthy’s advice. He received the final report from Mr McCarthy

in July 2006. He studied the report and immediately told Mr McCarthy that it was

not a matter in which the DSO should be involved at all. He reported the matter

to the DG’s of SASS and the NIA and gave them copies of the report. We
PIKOLI / SUBMISSIONS 27
TO THE PRESIDENT
20.11.08

describe these matters from page 80 in paragraphs 140 to 148 of our final

submissions in the enquiry.

37. The enquiry criticised three aspects of Mr Pikoli’s conduct. It said firstly that Mr

Pikoli “should have stopped any further investigation and prevented the Head of

the DSO from proceeding with the finalisation of the report” when he received the

draft in March 2006. 31 This criticism is in the first place based on a

misconception. Mr Pikoli testified that the investigation had been completed by

the time he was first told of it in March 2006. All that remained was for the report

to be completed. The suggestion that Mr Pikoli should have stopped the

finalisation of the report is new and startling. Nobody ever suggested anything of

the kind in the hearing. Mr Pikoli has never had an opportunity to respond to it.

We are still at a loss to understand why Mr Pikoli should have stopped the

finalisation of the report.

38. The enquiry secondly criticised Mr Pikoli for only reporting the matter to SASS,

NIA and the Minister after he had received the final report in July 2006. It said he

should have done so when he received the preliminary draft report in March 2006

because it is “not beyond reason to surmise that the preliminary report would

have indicated the gravity of the issues that were ultimately reflected in the final

report”. 32 But this speculative criticism is unfair. It suggests that Mr Pikoli should

have taken more seriously a preliminary draft of the report of which he was told at

the time that it was mere work-in-progress which he should not take seriously

until he received the final report. There is absolutely no basis for the enquiry’s

31
Report p 9 para 11.6, p 116 para 180, p 119 para 186 and p 198 paras 326 and 328
32
Report p 9 para 11.6, p 119 para 186 and p 197 paras 326 and 328
PIKOLI / SUBMISSIONS 28
TO THE PRESIDENT
20.11.08

conclusion that he should despite this advice have taken the preliminary draft

report more seriously.

39. The enquiry lastly suggested that Mr Pikoli should have reprimanded

Mr McCarthy for allowing the investigation to be done and for failing to co-operate

with the presidential investigation into the report. 33 The enquiry recognised that

Mr Pikoli did not have the power to discipline the Head of the DSO as only the

President had the power to do so. 34 Mr Pikoli also made it clear that he had

expressed his disapproval of the matter to Mr McCarthy in the strongest terms.

To suggest that Mr Pikoli had a further duty to reprimand the Head of the DSO

when he had no power to do so and would be intruding upon the prerogative of

the President, is not only wrong but also irresponsible.

The Selebi arrest and prosecution

40. The DSO investigators responsible for the investigation of Mr Selebi tried without

success from early 2007 to obtain certain documents they required for their

investigation from SAPS. At Mr Pikoli’s request, the President intervened in May

2007 and directed SAPS to give the DSO the documents they required. They set

up a mechanism for the issue to be resolved. It was however to no avail. The

DSO’s efforts to obtain the documents failed and culminated in a meeting with

SAPS on 4 June 2007 where SAPS told the DSO to go to court and obtain

search warrants rather than continue their efforts at co-operation. That was what

the DSO then decided to do. Mr Pikoli and the entire investigation team first

33
Report p 119 para 185
34
Report p 118 para 185
PIKOLI / SUBMISSIONS 29
TO THE PRESIDENT
20.11.08

briefed the Minister in June 2007. Mr McCarthy briefed Reverend Chikane in July

2007. 35 Mr Pikoli attempted to get an appointment with the President to report

these matters to him but the earliest appointment he could get was for Saturday

15 September 2007.

41. The enquiry criticised aspects of Mr Pikoli’s handling of this matter. We will deal

with each of its points of criticism. We addressed all of them in our final

submissions to the enquiry from page 29 in paragraphs 47 to 70, page 45

paragraphs 84 to 86 and page 54 paragraphs 87 to 91.

42. The enquiry firstly criticised Mr Pikoli for not informing the DG of the Presidency

of the stalemate in the DSO’s interaction with SAPS before resorting to search

warrants to obtain the evidence they sought. 36 The enquiry put it as follows:

“I can understand the frustration of the DSO at the difficulties being

placed in their way which prevented them gaining access to documents

that were necessary to facilitate their investigations. I am therefore not

able to find fault with the fact that the DSO ultimately decided that the

warrants for search and seizure was the only available avenue.

However, there is no reason why Advocate Pikoli did not inform the

DG:Presidency that his intervention was unsuccessful before

proceeding to obtain the warrants.” 37

35
Mr Pikoli was absent from the office during July and early August 2007 as a result of the
death of his mother.
36
Report p 162 para 256 and p 203 para 343
37
Report p 161 para 256
PIKOLI / SUBMISSIONS 30
TO THE PRESIDENT
20.11.08

43. But this criticism is based on a misconception of the facts and is in any event

unfair:

43.1. After the DSO had decided to apply for search warrants, Mr Pikoli

arranged for the investigating team to brief the Minister in June 2007.

They told the Minister at the very least that they had decided to

prosecute Mr Selebi and to apply for warrants to search his home and

office. Mr Nel’s recollection is that he also made it clear to the Minister

that they would seek a warrant for Mr Selebi’s arrest. Mr Pikoli

recorded this account in his letter to the Minister on 19 September

2007:

“At this meeting it was stated clearly that a decision had been

made to prosecute Mr Selebi and that the DSO was essentially

tying up loose ends in the investigation and preparing for an

arrest coupled with a search of Mr Selebi’s residence and the

SAPS head office.”

43.2. It was the Minister’s duty as part of her function of exercising “final

responsibility” over the NPA to report these developments to the

President and her colleagues in cabinet. She apparently did not do so

but that was her failure.

43.3. Mr Pikoli was absent from the office during July and early August

following the death of his mother. During this period Mr McCarthy

reported to Reverend Chikane that SAPS had failed to co-operate as

the President had directed them to do.


PIKOLI / SUBMISSIONS 31
TO THE PRESIDENT
20.11.08

43.4. Mr Pikoli and the DSO exhausted the mechanism created under the

President’s direction. The enquiry did not suggest otherwise. It merely

suggested that, if Mr Pikoli had informed Reverend Chikane that the

mechanism had failed, “this might have yielded other alternative

strategies to access the documents”. We know as a matter of fact

however that Mr McCarthy told Reverend Chikane that the mechanism

had failed and that he did nothing about it. The enquiry’s speculation

that telling him “might have yielded other alternative strategies” is

contradicted by the facts and is in any event sheer speculation.

43.5. The enquiry’s criticism is based on its understanding that “the

Constitution expects that organs of state must assist one another and

that every reasonable effort to settle a dispute between two organs of

state by means of mechanisms such as the one devised by the

President must be exhausted before approaching a court of law.” But

we submit with respect that this is based on a misconception of law.

The DSO did not resort to litigation to resolve a dispute with SAPS. It

merely invoked its ordinary powers of search and seizure under an

order issued by a judge of the High Court in pursuit of a criminal

investigation of an individual citizen, albeit that he was the National

Commissioner of Police.

44. It is common cause that Mr Pikoli told the Minister of the warrants before they

were executed. The enquiry’s second point of criticism was that he should have

informed the Minister of their intention to seek the warrants before they were
PIKOLI / SUBMISSIONS 32
TO THE PRESIDENT
20.11.08

issued. 38 We fully addressed this suggestion in our final submissions in the

enquiry from page 45 in paragraphs 84 to 86. We emphasize that Mr Pikoli

reported to the Minister before the execution of the warrants at a time when he

still had complete control over their execution. He could still determine whether

the warrants should be executed at all and if so, when it should be done. If the

Minister had raised any legitimate reservation or concern about their execution,

he could allow for it. She did not, as a matter of fact, raise any reservation or

concern at all. The complaint that Mr Pikoli ought to have reported to her earlier

before the warrants had been issued, is quite unfounded and irrational.

45. The enquiry’s last point of criticism arises from Mr Pikoli’s conversation with the

President on Saturday 15 September 2007. Mr Pikoli informed the President of

the plans to arrest Mr Selebi and search his premises. The President asked

Mr Pikoli to hold back the execution of the warrants for two weeks to give him an

opportunity to make the necessary arrangements. Mr Pikoli responded that two

weeks were “rather too long” but that he would be prepared “to hold back at least

for a week so that an enabling environment is created”. The President raised the

issue again the following day. When Mr Pikoli stuck to his suggestion of a week,

the President asked him whether he knew how angry the police were and that

some police officers were prepared to defy any court order.

46. The enquiry seems to suggest that, when the President asked Mr Pikoli to

suspend the execution of the warrants for two weeks, he should blindly have

agreed to do so without question. It criticizes Mr Pikoli for giving the President

38
Report p 11 para 11, p 186 paras 299 to 300 and p 204 paras 344 to 345
PIKOLI / SUBMISSIONS 33
TO THE PRESIDENT
20.11.08

only a week to make the necessary arrangements. 39 We addressed this

complaint in our final submissions in the enquiry from page 54 in paragraphs 87

to 91.

47. The following factors must be borne in mind in the evaluation of this complaint:

47.1. The President did not motivate his request for two weeks in any way.

We still do not know what his motivation was.

47.2. When Mr Pikoli suggested one week instead, the President did not

engage with him on the adequacy of his suggestion. He did not say

that a week would not be enough. The impression he created was that

he would have preferred two weeks but that a week would do.

47.3. There is no reason to believe that the President was overly concerned

about the matter. After his weekend meetings with Mr Pikoli, he wrote

to the Minister on Monday 17 September 2007 for information

“regarding the intended arrest and prosecution of the National

Commissioner” to “enable me to take such informed decisions as may

be necessary with regard to the National Commissioner”. He made no

suggestion that he had been given insufficient time to make the

“informed decisions” he had to make.

47.4. If the President was concerned about the adequacy of the week, he

would have conveyed his concerns to the Minister who would have

39
Report p 13 para 17, p 187 para 301 and p 208 paras 352 to 357
PIKOLI / SUBMISSIONS 34
TO THE PRESIDENT
20.11.08

raised them with Mr Pikoli in their meetings and correspondence in the

course of the following week. But none of that happened despite the

fact that Mr Pikoli made it clear in his letter to the Minister on the

Wednesday 19 September 2007 that he was acutely aware of the

need for the President to create an enabling environment for the

execution of the warrants:

“A possible investigation and arrest of the National

Commissioner of SAPS would clearly affect the national interest

and it was vital that the President be placed in a position to take

whatever steps necessary to protect the national interest or

avoid embarrassment to the country.”

47.5. If the President found that the week was insufficient to enable him to

make the arrangements that had to be made, he would have said so

towards the end of the week and would have arranged an extension of

it. The fact that he did not do so, can only mean that the week was

sufficient after all.

47.6. When the Minister asked Mr Pikoli to resign on Sunday afternoon

23 September 2007, she did not suggest that it had anything to do with

his failure to allow the President more time to create an enabling

environment. She would have done so if it was a real concern at the

time.

47.7. When the President suspended Mr Pikoli, he did not say or suggest in

their meeting or in his letter of suspension that it had anything to do

with Mr Pikoli’s failure to accommodate the need for an enabling


PIKOLI / SUBMISSIONS 35
TO THE PRESIDENT
20.11.08

environment. He would have done so if it was a real complaint at the

time.

47.8. Government never raised this complaint in their public statements after

Mr Pikoli’s suspension, in their founding statement in the enquiry, in

their supporting affidavits or even in their affidavits in reply. The DG in

the Presidency filed two affidavits but neither of them suggested any

unhappiness about Mr Pikoli’s reluctance to delay the execution of the

warrants for more than a week.

48. The enquiry’s criticism is in any event overblown and exaggerated. It says that

Mr Pikoli’s attitude to the President’s request for a delay of two weeks, “evinces a

lack of appreciation for the sensitivities that are attendant on matters that may

impact on national security. It illustrates a lack of respect for the President’s

constitutional obligation to maintain stability and national security, and it suggests

that Advocate Pikoli believed his own assessment of the security environment

superior to that of the President.” 40 It says in the same vein that it was

“incumbent on Advocate Pikoli to respect the President’s assessment of the time

that would be necessary” 41 .

49. The enquiry’s view seems to be that Mr Pikoli’s sin was his failure to agree blindly

and without question to the President’s mere request for two weeks made without

any motivation or explanation. The mere fact of the President’s request should

40
Report p 187 para 301
41
Report p 209 para 355
PIKOLI / SUBMISSIONS 36
TO THE PRESIDENT
20.11.08

have sufficed. Mr Pikoli should immediately and blindly have agreed to it,

whether justified or not, simply because the President asked for it.

50. We submit with respect that the enquiry is quite wrong. The Constitution and the

NPA Act do not require the NDPP to interact with the President in such

obsequious fashion. It would be a dereliction of his duties to act in such an

obsequious manner as the enquiry suggests he should have done. He made it

quite clear that he was acutely aware of the need for the President to create an

enabling environment. He would have accommodated any reasonable request

on that score. He was however entitled to assume that his counter-proposal of a

week was sufficient because the President would have remonstrated or at least

engaged him on it if it were not.

Mr Pikoli’s understanding of broader considerations

51. The enquiry expressed concern about Mr Pikoli’s apparent lack of understanding

“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”. 42

52. This concern is incidental to the enquiry’s particular criticisms of Mr Pikoli. 43 We

have already submitted that those criticisms are unfounded. We submit that the

further concern flowing from them is equally unfounded.

42
Report p 207 para 350
43
Report p 207 para 350
PIKOLI / SUBMISSIONS 37
TO THE PRESIDENT
20.11.08

Mr Pikoli is fit for office

53. We have submitted that the enquiry’s criticisms of Mr Pikoli are unfounded. But

even if we are wrong and on the assumption that the enquiry’s criticisms are

valid, they still do not reflect on Mr Pikoli’s fitness for office. His capacity, integrity

and conscientiousness are beyond question. The enquiry concluded that,

despite its criticisms, Mr Pikoli should be restored to the office of NDPP. 44 We

submit that this conclusion is not only correct but inevitable. None of the

criticisms of Mr Pikoli come close to impugning his fitness to hold the office of

NDPP. They reflect a mere difference of opinion between the enquiry and Mr

Pikoli about the way in which he should perform his functions as NDPP. They do

not reflect on his fitness for office at all.

Wim Trengove SC

Tim Bruinders SC

Benny Makola

Chambers
Sandton
24 November 2008

44
Report p 212 para I