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Pearlie Joubert, Adriaan Basson15 Aug 2008 06:00
The Director General of Justice, Menzi Simelane, asked senior members of the National Prosecuting Authority (NPA) to spy on their boss Vusi Pikoli.
Pikoli was suspended by President Thabo Mbeki last year on the grounds of a breakdown of trust between the NPA head and Justice and Constitutional Development Minister Brigitte Mabandla.
The Mail & Guardian can reveal that Simelane became so involved in the NPA’s business that Pikoli took the unusual step of complaining to Mabandla about her DG’s behaviour.
“[A]n impression is being created that there are two heads of the NPA or there’s co-management. This manifests itself in members of the NPA engaged in core business being called by the DG without me being requested or informed.
I find this untenable and am not going to allow it to continue any longer,” Pikoli wrote to Mabandla in January 2006, six months after Simelane’s appointment to the Justice Department.
Mabandla ignored Pikoli’s plea. M&G of the meeting. He asked not to be named for fear of victimisation.
I spy on Pikoli
“At the beginning of last year Menzi Simelane asked me to spy on Vusi Pikoli and told me that either Pikoli or himself will have to go because both of them can’t stay. He said, ‘It’s him or me and watch this space because I’m going nowhere,’” the source says. Simelane denies saying this.
This meeting took place nine months before Mbeki suspended Pikoli. The M&G has established that Simelane contacted “a number” of Pikoli’s staff from as early as the beginning of 2006 in an effort to gain information on Pikoli. This included an expensive supper with senior prosecutors in Cape Town.
Pikoli confirmed in an interview this week that Simelane indeed contacted and interfered with NPA staff “so much that I wrote a letter already in 2006 to [Mabandla] drawing her attention to the fact that Simelane was meddling in my affairs”.
“Yes, Simelane did request meetings, [and] organised supper and lunch with senior people in the NPA where he was less than flattering about me and my ability and where he asked people for information,” Pikoli said. The 2006 letter to Mabandla was recently admitted as evidence to the Ginwala inquiry into Pikoli’s fitness to hold office.
Pikoli says he doesn’t know why Simelane was “so personally focused” on him.
“I know that Simelane spoke, at various meeting, to staff members of the NPA and very senior people within the NPA. I don’t know why it was so personal for him,” he said. “A very senior member of my staff told me at the beginning of last year that Simelane was telling people that I will not stay in my job for long. The ‘it’s either-him-or-me story’ I’ve heard from more than one person.”
The senior NPA advocate interviewed by the M&G said Simelane was “particularly” interested in why the NPA was pursuing the prosecution of African National Congress (ANC) president Jacob Zuma; whether the NPA was planning to charge Mbeki and other senior ANC officials on the basis of the Truth and Reconciliation Commission (TRC) refusing them amnesty; and why Pikoli was not acting against “corrupt white NPA officials”.
An Mbeki canard
The advocate “hardly knew” Simelane when his secretary phoned, requesting a meeting during working hours early last year.
“I discussed the matter with my immediate boss and I agreed to meet Simelane thinking that he might want to offer me another position within the Justice Department. At our meeting he started attacking Pikoli out of the blue. He said: ‘That’s an arrogant man who doesn’t listen or take instruction.’
“Simelane was clearly very upset with the position [in the NPA of advocate] Anton Ackermann and said that Vusi won’t act against him and his apartheid-era agenda. He said to me, ‘I know that you guys in the NPA are planning to prosecute the president and some other ANC members. I know that for a fact and we’ll resist any prosecution of TRC cases.’”
Ackermann heads the NPA’s priority crimes litigation unit. The unit was formed in 2005 to look at failed applications for amnesty from the TRC and to decide whether to prosecute them criminally.
Among the cases assessed by this unit was the amnesty application by Mbeki and 36 other ANC leaders for unspecified crimes that may have been committed while the organisation was banned and in exile. An example in this application was the planting of landmines during the apartheid-era.
The TRC ruled that it could not give Mbeki and other ANC leaders amnesty for such a broad and unspecific application.
In 2004 the then NPA head, former national director of public prosecutions Bulelani Ngcuka, publicly confirmed that the ANC leaders would not be prosecuted.
These failed amnesties became topical again last year when Rapport reported that Ackermann had written to the police asking for more information on the 37 files with an eye on possible prosecutions. The NPA vehemently denied this and said Ackermann’s “letter” was a fake.
Among the ANC leaders refused amnesty were embattled police National Commissioner Jackie Selebi, Social Development Minister Zola Skweyiya, Intelligence Minister Ronnie Kasrils, Safety and Security Minister Charles Nqakula, businessman and ANC stalwart Tokyo Sexwale and ANC treasury general Mathews Phosa.
Pikoli said this week that the “persistent rumour” that he was going to prosecute Mbeki and others who had been denied amnesty had been “kept alive for many years” by senior people within the South African Police Service.
“I told Simelane that we [the NPA] have said publicly that President Mbeki and other Cabinet ministers are not under investigation for the planting of landmines and that that case is closed, but he said he has had discussions with the president about the fact that Vusi and his team are planning to prosecute ANC leaders,” the advocate said.
“[Simelane] made it clear to me that he told the president that Pikoli and the NPA are planning to prosecute him. He told me that he has met with Jackie Selebi, with the NIA’s [National Intelligence Agency] Director General, Manala Manzini, and with Loyiso Jafta from the Presidency to discuss their unhappiness about the way Vusi is conducting his business and his prosecution plans.
“He asked me what Pikoli does when he goes overseas; he asked me what Pikoli’s special adviser Kalyani Pillay’s role in the NPA is, and he said, ‘I can’t see why you people must prosecute Jacob Zuma because I myself am not a man who believes in circumstantial evidence.’
“I felt like he was tapping me for information and that he wanted me to give him information that he can use against Pikoli. I was very uncomfortable because he was testing my loyalty to Pikoli,” the advocate said. The advocate informed Pikoli of his meeting with Simelane.
Pikoli said: “I heard about a number of such meetings that Simelane held with staff members. I asked the minister to intervene on my behalf, but as far as I know, it didn’t happen.” The suspended NPA head said he phoned Simelane and asked him to “lay off” his staff. “I’d had enough and told him so.”
In addition to being the government’s main accuser of Pikoli during the investigation of the NPA boss, Simelane has been a staunch critic of the Scorpions and argued for the dissolution of the unit in a submission to the parliamentary hearings on the matter.
Simelane has also assisted the ANC in KwaZulu-Natal with its anti-Scorpions submission to the public hearings on the bills.
Simelane is central to the ANC’s post-Polokwane spin strategy that says the review of the criminal justice system always included the dissolution of the Scorpions.
However, Deputy Justice Minister Johnny de Lange, who is in charge of the review, this week again publicly confirmed that closing down the Scorpions was not originally part of the plan. De Lange’s campaign to beef up the country’s crime-fighting capabilities was the result of negotiations between business and the government.
The private sector’s main contributions to the process have come through Business against Crime, which is a vocal advocate for the Scorpions’ survival.
People familiar with the internal wrangling within the Justice Department have told the M&G that perceived tensions between De Lange and Mabandla were a symptom of the real battle between De Lange and Simelane over who would have de facto control over the department.
According to an analysis that has wide currency in the government and Parliament, Mabandla is both indecisive and inefficient, and the two men have jostled to fill the vacuum for four years.
It was recently revealed at the Ginwala inquiry’s public hearings that Simelane claimed he had extensive power over the NPA, despite legal opinion by senior advocate Vincent Maleka that as DG he only had accounting responsibilities over the unit.
In a recent move, interpreted by NPA insiders as a further clampdown on the institution’s independence, Justice Department chief operating officer Khotso de Wee was moved to the NPA where he is acting as the institution’s chief executive.
Additional reporting by Sello S Alcock and Nic Dawes
Simelane responds to the Mail & Guardian‘s questions
1. Why did you decide to contact certain NPA staff and discuss with them the actions and activities of advocate Pikoli?
I never contacted any NPA staff to discuss activities of advocate Pikoli. If I met NPA staff, it is in the context of a specific matter involving the department.
2. Do you believe it was proper of you, as accounting officer of the Department of Justice, to request subordinates in the NPA effectively to spy on advocate Pikoli?
There is no official of the NPA that I asked to spy on any official or person, in particular advocate Pikoli. I have never had any reason to do such a thing.
3. Why did you ask a senior NPA member, who for security reasons can’t be identified, to provide you with information on Pikoli’s plans with the prosecution of Jacob Zuma?
I never discussed such a matter with any official of the NPA. What I discussed with the official concerned who is a prosecutor was a general approach to prosecutions by the NPA and the specific prosecutor’s views in light of the strategy being used by the lawyers in the cases of Mr Zuma and Mr Selebi. The issues discussed related to points of law those cases raise and also of academic interest. This discussion was informal in a function attended by myself and the official concerned.
4. Why did you tell a senior NPA member that you saw no reason why the NPA must continue to prosecute Zuma because it only had circumstantial evidence against him and you didn’t believe in circumstantial evidence?
This is not correct. The issue that we were discussing related to the answer to question three above. The point of law that we shared was the use of circumstantial evidence by prosecutors and the evidentiary challenges in court as a result. I indicated that if I were a prosecutor, I would not as a matter of practice rely on circumstantial evidence for the burden that it places on prosecutors. The prosecutor concerned indicated that generally prosecutors share that view but that such evidence can be useful if it is overwhelming. Depending on the case.
5. Do you believe it was proper of you to relay your opinion on the Zuma prosecution to a subordinate?
Not applicable. The prosecutor concerned is not my subordinate.
6. Why did you ask a senior NPA member to provide you with information on advocate Pikoli’s overseas travels?
Not applicable. All travel requests sent to the department require the accounting officer to approve the expenditure. The request contains the reasons/motivation for the request. It is therefore not necessary to make enquiries in this regard.
7. Why did you ask a senior NPA member about the role and activities of advocate Pikoli’s special adviser, Kalyani Pillay?
I did not ask any official for this information. I have always known the role of the special adviser in relation to her functions.
8. Why did you tell a senior NPA member that advocate Pikoli was incompetent, that he didn’t listen or take instructions? Do you believe this was proper behaviour by you?
I explained the issues that were being raised in the hearing.
9. Why did you tell a senior NPA member that “we” will resist any prosecution on TRC matters, and that you knew the NPA was busy planning the prosecution of Mbeki and 37 other ANC members on TRC matters, when you knew that was not the case?
I never said this.
10. Why did you believe the NPA was going to prosecute Mbeki and 37 other ANC members, and why did you tell Mbeki that this was the case, when you knew this to be untrue?
Again I never made this statement.
11. Did you attempt to influence Mbeki on his relationship with and opinion of advocate Pikoli?
I have never had an audience with the president.
12. Why did you, National Intelligence Agency Director General Manala Manzini, police National Commissioner Jackie Selebi and head of criminal justice in the Presidency Loyiso Jafta meet about the TRC prosecutions?
At various meetings we discussed the task team that was set up with the NPA on the processing of these matters.
13. Why did you in a meeting with former Scorpions boss advocate Leonard McCarthy discuss with him your problems with advocate Pikoli and issues pertaining to the working of the NPA and the Scorpions?
This is not correct. My discussions with McCarthy related to how the Khampepe recommendations could be implemented. We discussed the proposals made by the Scorpions and the cluster and how they affected the various powers of the NDPP and the head of the DSO in terms of the NPA Act.
14. Do you believe it was proper conduct by you to discuss your differences with advocate Pikoli with advocate McCarthy, who is advocate Pikoli’s subordinate?
This discussion did not take place.
15. Why did you tell a senior NPA member “either Vusi Pikoli goes or I go—both of us can’t stay here. It’s either him or me”? Do you have an agenda against advocate Pikoli?
Nothing of the sort was ever said to anyone, let alone an NPA official. I have never had an agenda against advocate Pikoli. I also have no reason to have an agenda against him.
16. Why did you meet members of the ANC’s KwaZulu-Natal leadership last week Friday to discuss with them their submissions to the public hearings on the NPA Amendment Bill?
To brief them on the issues raised in the Bills in Parliament (South African Police Service Amendment Act and National Prosecuting Authority Amendment Act) and the review of the criminal justice system.
17. What did you tell the ANC during this meeting regarding its submissions on the future of the Scorpions?
They were briefed of the issues raised in the briefing to Parliament.
18. Do you believe it was proper for you as the most senior civil servant in the Department of Justice and accounting officer of the NPA to give private briefings to a political party regarding government policy? Please elaborate.
To my knowledge there is no prohibition to briefing on civil servants to briefing government stakeholders on the work of government especially once the processes have become public processes.
19. What is your view regarding the separation of powers between party and state? Do you believe that by briefing the ANC you have violated this separation? Please elaborate.
Briefly, there is a difference between the two. Therefore government work focuses on everyone irrespective of political affiliation. I don’t believe that there was a violation of the principle of separation of powers.
20. Who paid for your trip to Durban to brief the ANC?
21. Did you file a leave application form to be absent from work on Friday when you visited the ANC in Durban?
22. The M&G believes that the Department of Justice’s chief operating officer, Khotso de Wee, was recently transferred to the NPA. What will be his role at the institution?
He is acting CEO because of a vacancy. He will perform the functions of a CEO as per the delegations.
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