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CONTENTS
INTRODUCTION................................................................................................ 3
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
2.1. The vindication of Mr Pikoli. The enquiry has vindicated him, found no
restored to office.
2.2. His principal accusers were disgraced and the case against him
inference is that her evidence would not have withstood the scrutiny of
Minister.
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TO THE PRESIDENT
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2.3. The enquiry was unduly protective of the Minister and the President.
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
3. We addressed all the contentious issues in our final submissions to the enquiry.
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
never been in doubt. He is vastly more experienced today than he was when the
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
Mr Pikoli,
1
Report p 212 para I
2
Report p 69 para 95
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prejudice” 3 , and
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
3
Report p 177 para 284
4
Report p 185 para 296
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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
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
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
10.2. The Minister denied on affidavit that she had intended to interfere with
5
Report p 177 paras 285 to 289
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TO THE PRESIDENT
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scrutiny.
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
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
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
was plainly untrue. The Minister’s relationship with Mr Pikoli had never
6
Report p 7 para 11.1, p 61 paras 81 to 96 and p 191 paras 308 to 311
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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
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
in the enquiry. He became government’s main witness when the Minister chose
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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12.3. He arrogated powers to himself which he did not have. It brought him
counsel who disagreed with him and agreed with Mr Pikoli. The DG
oath. 10
enquiry held that this conduct “was reckless to say the least” and that
12.5. The enquiry concluded that the DG’s conduct had been “highly
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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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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14. The enquiry was overly protective of the Minister and the President. It bent over
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
original affidavit that there was only one reason for his suspension and that was
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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TO THE PRESIDENT
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We described this run-up in our final submissions in the enquiry from page 29 in
17.1. Mr Pikoli told the President on 15 September 2007 that the DSO had
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
to do so.
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 rupture has never been explained. We do not know whether the
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TO THE PRESIDENT
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he could not comply with her instruction to stop the arrest and
prosecution of Mr Selebi:
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
resign.
17.7. Mr Pikoli met with the President shortly thereafter in the early evening
told him that he would suspend him if he did not resign. Mr Pikoli
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
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
18.1. They said in their letter of suspension and in their public statements
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
19
Report p 61 paras 81 to 96 and p 191 pars 308 to 311
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not pursue the remainder of it with any vigour. The complaint was in
19. The government subsequently raised many further complaints in their attempt to
concluded that,
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
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
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
21.1. The enquiry pointed out that the Minister and the President had until
nothing to frustrate it. 23 That was so but it was proved beyond doubt
was suspended a mere five days later when he refused to obey her
previously have been, the Minister’s conduct in the critical days leading
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
2008. She has failed to give any explanation for it. It is not for the
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,
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
replied that two weeks was too long but that he would suspend 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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made any mention of it again. His letter of suspension did not suggest
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,
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
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.
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.
September 2006. When the Minister did not respond to the third memorandum,
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November 2006.
25. The enquiry correctly held that Mr Pikoli cannot be faulted for notifying Treasury.
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
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
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
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
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
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
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
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,
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
30. The second point of criticism raised by the enquiry was that Mr Pikoli did not do
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
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
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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the contrary, when the DSO undertakes searches countrywide of both high
government offices and private premises, it is important that they act and are
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
Pikoli’s suspension after the event when it was in fact done without justification
33. The DPP of Malawi sent a request to Mr Pikoli for assistance with their
particular hotel on a particular day. Mr Pikoli quite properly referred the request
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.
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34. We dealt with these events from page 86 in paragraphs 149 to 162 of our final
35. The enquiry however criticised Mr Pikoli for not informing the Minister of the
35.1. Mr Pikoli was obliged to deal with the Malawian request for mutual
35.2. Mr Pikoli was entitled to assume that the DG for Justice will take
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
accordingly entitled to assume that the DG for Justice will convey the
30
Report p 127 para 196, p 129 para 198 and p 199 paras 330 to 331
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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)
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
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
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TO THE PRESIDENT
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describe these matters from page 80 in paragraphs 140 to 148 of our final
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
the time he was first told of it in March 2006. All that remained was for the report
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
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
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conclusion that he should despite this advice have taken the preliminary draft
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
To suggest that Mr Pikoli had a further duty to reprimand the Head of the DSO
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
2007 and directed SAPS to give the DSO the documents they required. They set
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
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briefed the Minister in June 2007. Mr McCarthy briefed Reverend Chikane in July
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
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:
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
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
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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
2007:
“At this meeting it was stated clearly that a decision had been
43.2. It was the Minister’s duty as part of her function of exercising “final
43.3. Mr Pikoli was absent from the office during July and early August
43.4. Mr Pikoli and the DSO exhausted the mechanism created under the
had failed and that he did nothing about it. The enquiry’s speculation
Constitution expects that organs of state must assist one another and
The DSO did not resort to litigation to resolve a dispute with SAPS. It
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
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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
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
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
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
38
Report p 11 para 11, p 186 paras 299 to 300 and p 204 paras 344 to 345
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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.
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
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
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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
47.5. If the President found that the week was insufficient to enable him to
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
23 September 2007, she did not suggest that it had anything to do with
time.
47.7. When the President suspended Mr Pikoli, he did not say or suggest in
time.
47.8. Government never raised this complaint in their public statements after
the Presidency filed two affidavits but neither of them suggested any
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
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
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
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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
quite clear that he was acutely aware of the need for the President to create an
week was sufficient because the President would have remonstrated or at least
51. The enquiry expressed concern about Mr Pikoli’s apparent lack of understanding
ensure that the NPA, and the DSO, operate in a manner that takes into
security”. 42
have already submitted that those criticisms are unfounded. We submit that the
42
Report p 207 para 350
43
Report p 207 para 350
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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
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
Wim Trengove SC
Tim Bruinders SC
Benny Makola
Chambers
Sandton
24 November 2008
44
Report p 212 para I