What ails the National Prosecuting Authority?

by | May 28, 2015 | General | 0 comments

It is remarkable that Advocate Vusi Pikoli, who was not a public servant between 2007 and his appointment as Western Cape police ombudsman in December 2014, should feature in the news in 2015 in two related historical matters. Firstly: regarding the bugging of his offices in 2007 by operatives illegally engaged by the SA Revenue Services. Secondly: regarding the quest to compel his erstwhile colleagues in the National Prosecuting Authority to make a prosecutorial decision or refer the matter of the disappearance of Nokuthula Simelane in 1983 to a judicial inquest.

Pikoli was National Director of Public Prosecutions back in 2007. He endeavoured to carry out his functions without fear, favour or prejudice, as behoves a conscientious and constitutionally compliant appointee. Due to his willingness to act independently he was suspended by President Mbeki, primarily for going after the corrupt late chief of police, Jackie Selebi, and was later dismissed by President Motlanthe for doing the same to then private citizen Jacob Zuma. None of Pikoli’s predecessors nor, it would appear, his successors, have ever seen out their ten year term of office. The reason for his premature and expensive hiatus in public service is revealed in the detail of the two current news stories.

The NDPP incumbents in the new SA have become an endangered species due to endemic political interference with the functioning of the NPA. The illegal bugging is but a symptom of the desire of the executive branch of government to control the NPA, despite the constitutional provision that it be allowed to operate “without fear, favour or prejudice” or, in a word, independently. The Selebi saga ended well for the NPA as a conviction was secured. The legal troubles of Zuma are ongoing, with a judicial review of a decision to withdraw (one which Pikoli would not have taken, or at least, could not be trusted to take) 783 charges of corruption against Zuma still wending its way through the legal system at a snail’s pace.

The illegal bugging by SARS was to enable those under investigation in both matters to keep abreast of the developments in the investigation of the cases against them. SARS passed on its ill-gotten information to crime intelligence in the police who passed on the tapes to Zuma’s attorney to use to bamboozle Pikoli’s acting successor, Mokotedi Mpshe, successfully, so far.

The investigation of the kipnapping of Nokuthula Simelane by the security police in 1983 is a further illustration of the inability of the NPA to do its work properly due to political interference. The security branch operatives who kidnapped Simelane appeared before the Truth and Reconciliation Commission and were given amnesty for their deed. No one asked for amnesty for killing Simelane who was interrogated, tortured and subjected to “kop-draai” techniques unsuccessfully aimed at making her an askari. She disappeared and has not been seen since in 1983. Her family has no closure in the matter and her father went to his grave not knowing the fate of his daughter.

The current application by the family seeks declaratory and mandatory relief aimed at compelling a prosecution of the suspects in the disappearance or alternatively an inquest. The family also seeks a declaratory order in regard to the impairment of their dignity.

The matter, brought to court by the current mayor of Tshwane, is remarkable because Pikoli features in it as a deponent for the applicants, even though the respondents include his current successor and the responsible minister. The Simelane family applied in 2007 to strike down the “backdoor amnesty” provisions of the then prosecution policy of Pikoli’s pedecessor in the hope that this would open the door to the prosecution of those responsible for the “forced disappearance” of their loved one. It did not.

Pikoli not only confirms an affidavit by the prosecutor in charge of the sub-unit burdened with the investigation of apartheid era crimes, Anton Ackermann, he also gives chilling detail of the interference in his independence by a variety of cabinet members, deputy ministers, directors general and, needless to say, Jackie Selebi. The latter at one stage openly declared war on him.

The reason behind interfering with Pikoli was the fear that prosecuting apartheid era operatives would usher in the prosecution of those in the ANC who were involved in malfeasance during the struggle, some of them highly placed in the new administration. Pikoli rightly concludes that the “meddling that I have set out … is deeply offensive to the rule of law and any notion of independent prosecutions under the Constitution. It explains why the TRC cases have not been pursued [and] why the disappearance and murder of Nokuthula Simelane were never investigated with any vigour and why the pleas of her representatives were ignored.”

The very proper refusal of Pikoli to bow before the political interference in his work as NDPP certainly contributed to his suspension and ultimate dismissal, despite the Ginwala Commission into his conduct making the recommendation that he is a fit and proper person to hold the office of NDPP. The failure of any of his successors to pursue the “political cases”, while understandable given his fate, is lamentable. The proper administration of justice cannot take place in an atmosphere of political interference in the workings of independent bodies such as the NPA, the Chapter Nine Institutions and of course the judiciary.

The striving for hegemonic control of all levers of power, which is the stock in trade of those who still believe in the “national democratic revolution”, is to blame. This striving is deeply at odds with the constitutional principles of the separation of powers and the notion that checks and balances on the exercise of power in the various spheres of government are necessary. A responsible minister of justice is not supposed to dictate to the NDPP in matters of prosecution policy. The formulation of prosecution policy is the constitutional task of our NDPPs and their Directors of Public Prosecutions. The role of the minister is to concur in what is determined by the senior prosecutors.

It is pellucid from the papers in the Simelane application that the Constitution has been dishonoured to protect well-connected members of the ANC against the possibility of being prosecuted for their criminal role in the struggle. Justice delayed is justice denied. The guaranteed rights to equality before the law and to access to justice have not been respected in the manner in which the family’s agony has been trifled with by those tasked with the investigation of the disappearance of their loved one.

So much time has passed that it is now an open question as to whether anyone charged as a result of the application to compel will be able to have a fair trial. Section 35(3) of the Bill of Rights provides that every accused person has a right to a fair trial which includes the right to have their trial begin and conclude without unreasonable delay. The individual respondents joined in the application will surely raise this right in their defence.

The best chance for the long-suffering Simelane family is that an inquest will be ordered. The relatives of the persons who went down with the Helderberg off Mauritius, especially those who have considered the re-opening of the Margo Commission, will be watching this aspect of the Simelane application with keen interest.

It is a matter of great public concern that the NPA is not given the space and independence of action to get on with fulfilling its legal and constitutional mandate. The Simelane family has done well to bring this to the attention of the courts through their application and their spirited pertinacity. The rule of law does not work when the NPA is not allowed to do its job. No amount of tinkering with the rules and regulations will help for so long as compromised and conflicted cadres are deployed in positions of power.

By expressing his shock at being bugged illegally and by giving his overt support to the Simelanes, Pikoli is demonstrating his fealty to the Constitution and is bravely putting himself above loyalty to the NDR.

Paul Hoffman is a director of Accountability Now


25 May 2015






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