The Ginwala hearing has made public a controversial letter from President Thabo Mbeki to Minister of Justice and Constitutional Development Brigitte Mabandla over the handling of a warrant to arrest police national Commissioner Jackie Selebi.
”Since it was in the public domain and since it had been used, there could be no privilege that could attach to the letter,” Dr Frene Ginwala told journalists on Friday.
Ginwala is chairing the inquiry into the fitness of Vusi Pikoli to hold the office of National Director of Public Prosecutions.
She was speaking after adjourning the oral hearings until June 23 and setting them down until July 4 at a venue yet to be announced.
On Thursday, Ginwala directed that ”no public disclosure” be made of Mbeki’s letter dated September 17 2007.
”This is because the inquiry is internal in nature,” she said. ”Obviously parts that have been read into the record, that is open and can be referred to.”
However, the inquiry made the entire contents of the letter available to the media on Friday.
Ginwala said she had asked the president’s legal team for the letter and inquired whether it was indeed privileged. She received a copy on Thursday.
In a written explanation of her decision to release the letter to the public, Ginwala told the Justice Department it ”did not indicate in the covering letter that there was any restriction to the disclosure of the contents of the letter”.
”Parts of the letter were referred to in evidence. I subsequently received a verbal communication that the government would want to claim privilege. I ruled that the letter should not be distributed, which ruling was not opposed by either party.
”Parts of the letter were read into the record.
”I am of the considered view that no privilege still attaches to the letter and for that reason it may be made public.”
Ginwala said she had made it clear that the new direction she had given regarding the letter did not set any precedent relating to disclosure of communication between members of the Cabinet and the president.
”So it has no bearing on whatever the positions may be, but it was a ruling applicable to that particular letter and the particular circumstances.”
In the letter, Mbeki writes:
”I have been informed that the national director of public prosecutions has taken legal steps to effect the arrest of and the preference of charges against the National Commission of the police service.
”As you are aware, our Constitution and legal framework recognises that the prosecution of offenders is pursued by the prosecuting authority on behalf of the state, represented by our duly elected government.
”Accordingly, clause 179 of our Constitution provides that the Cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority.
”Section 33 of the National Prosecuting Authority Act repeats this constitutional directive. This Act goes further, in section 33, to provide, among others, that the national director of public prosecution shall, at the request of the minister of justice, furnish the minister with information with regard to any case, matter or subject dealt with by the national director or a director.
”The national commissioner is appointed by and accountable to the president of South Africa.
”In view of the constitutional responsibilities of the president with regard to the Office of the National Commissioner of the police service, I deem it appropriate that you obtain the necessary information from the national director of public prosecution regarding the intended arrest and prosecution of the national commissioner.
”This would enable me to make such informed decisions as may be necessary with regard to the national commissioner.
”Kindly keep me informed of progress in this regard. Needless to say, this matter is urgent.” — Sapa