Khampepe submission led to ‘irretrievable breakdown’

Justice Minister Brigitte Mabandla has told the Ginwala Commission that suspended National Prosecuting Authority boss Vusi Pikoli’s submission to the Khampepe Commission was behind the ‘irretrievable breakdown” in their relationship.

The Mail & Guardian has reliably learned that this was the reason put forward by Mabandla’s legal team in written submissions this week to former speaker Frene Ginwala, appointed by President Thabo Mbeki to head the inquiry into Pikoli.

Ginwala must determine what caused the breakdown of the relationship and if Pikoli is a fit and proper person to head the NPA.

Pikoli will now study the state’s submission and then make his own representation to the Ginwala ­Commission.

It remains unclear whether any of the commission’s proceedings will take place in public and if legal practitioners will assist Ginwala. Her spokesperson, Lawson Naidoo, could not provide further details this week and said that Ginwala was abroad.

The M&G has, however, learned that Mabandla has cited as the catalyst for the souring of the relationship Pikoli’s defence of the Scorpions during Judge Sisi Khampepe’s hearings in 2005.

Pikoli and Scorpions’ boss Leonard McCarthy zealously defended the existence of the Scorpions in their current form under NPA jurisdiction, while Mabandla argued for the unit to be moved to the South African Police Service (SAPS).

Mabandla is the NPA’s political head and has long felt excluded by Pikoli’s decision-making, particularly on high-profile cases such as the investigation into police National Commissioner Jackie Selebi.

Full statement (PDF) Read the full Johannesburg Bar Council statement

It is not clear yet what Pikoli’s approach to the Ginwala Commission will be. But if Mabandla primarily relies on his submission to Khampepe, Pikoli would have an ace up his sleeve: Khampepe’s recommendations and Mbeki’s acceptance of them.

The judge effectively dismissed the shared view of Mabandla, Selebi and axed spy boss Billy Masetlha that the Scorpions should become an SAPS unit. He accepted Pikoli’s submission that prosecutor-led investigations were the way to go and that the Scorpions should stay under his control.

The only change, accepted by Mbeki, was that Pikoli should also report to Safety and Security Minister Charles Nqakula on the Scorpions’ law enforcement activities.

In Parliament this week Independent Democrats leader Patricia de Lille criticised Pikoli’s suspension, saying that the ANC’s internal divisions ‘are manifesting themselves in the state’s security apparatus to the detriment of the safety of our people”.

De Lille added: ‘Why is the difference at the Khampepe Commission only raised more than one year later, when Pikoli has been suspended and Selebi’s arrest is imminent? Secondly, according to the Constitution a breakdown in the relationship between the justice minister and Pikoli is not misconduct — Pikoli can be dismissed only for misconduct or for being unfit for office.”

The DA again asked Ginwala to recuse herself from the Pikoli inquiry, saying that a ‘respected judge” should take the role of chairperson. The party earlier threatened to fight ­Ginwala’s appointment in the courts after she refused to step down, but has now reconsidered.

‘[I]n appointing Dr Ginwala to head the inquiry, the president acted in terms of executive and not administrative power. His actions therefore fall outside the scope of the Promotion of Administrative Justice Act; thus we are precluded from challenging her appointment in a court of law,” DA leader Helen Zille said in a -­statement.

But Zille added: ‘It is our wish that Dr Ginwala should reassess her decision not to recuse herself from the inquiry in the light of her conflict of interest. If she fails to do so, she must accept that serious questions will be asked if she finds advocate Pikoli unfit to hold office, thus supporting the president’s decision to suspend him.”

And in another develop­ment on Wednesday, the Johannesburg Bar Council issued a tough statement asking government for a ‘strong and unambiguous” undertaking that there would be no political or other interference in the judicial ­system.

The council found it ‘disquieting” that in seeking to rescind Selebi’s arrest warrant, acting NPA boss Mokotedi Mpshe had approached a different magistrate from the officer who had issued the warrant and had done so ‘after hours”.

The council commended Judge Phineas Mojapelo for refusing to grant a similar request from Mpshe for the cancellation of search and seizure warrants.

It said: ‘The independence of the judiciary and the constitutional requirement that the prosecuting authority exercises its functions without fear, favour or prejudice are cornerstones of our young democracy. At present, and with the information in the public domain, it seems to us that there may have been interference with these constitutional safeguards. If so, it is a crisis.”

Nqakula dismissed calls for Selebi’s suspension on Wednesday, saying that he had seen no proof of ­criminality involving the police chief.

‘I asked him: ‘Are you guilty of any crime?’ and he said: ‘No, I’m not’,” Nqakula told Parliament. ‘Nobody has brought me evidence to show that indeed he is guilty of any crime.”

Meanwhile, the M&G has established that senior police detective Piet Byleveld is pursuing another potential witness in the Scorpions’ case against Selebi — Palto boss Paul Stemmet. Palto freelanced for the police and is implicated in a string of offences committed by characters in the drugs and bouncer underworld.

The M&G reported last week that Byleveld was actively investigating the three alleged hit men in the Brett Kebble murder case.

Johannesburg director of public prosecutions Charin de Beer confirmed this week that the Palto dockets ‘are with Byleveld for further investigation”.