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Pearlie Joubert, Adriaan Basson05 Dec 2008 06:00
The confidential report of the Ginwala commission clears former president Thabo Mbeki of an abuse of executive power, finding that he did not interfere in the arrest and prosecution of police National Commissioner Jackie Selebi.
This is a political setback to the current ANC leadership, which hoped that the commission would further shore up its claim that Mbeki abused the law enforcement system.
The report has yet to be released by President Kgalema Motlanthe, but the Mail & Guardian has spoken to three independent sources with knowledge of the report’s content, who confirmed Mbeki’s absolution.
Our investigation shows that former speaker Frene Ginwala and her panel rejected suspended prosecutions boss Vusi Pikoli’s contention that Mbeki colluded with senior government officials to save Selebi’s skin.
Instead, the report says justice department boss Menzi Simelane misled former justice minister Brigitte Mabandla and withheld information from her and the inquiry.
The M&G reported four weeks ago that the report exonerates Pikoli and recommends his reinstatement as national director of public prosecutions.
It further finds that:
Despite these “shortcomings” and Ginwala’s rejection of Pikoli’s allegation of a conspiracy to save Selebi, the reports finds he is a fit and proper person to lead the National Prosecuting Authority (NPA).
The report, in three volumes, was handed to Motlanthe more than four weeks ago.
He gave the report to his legal advisers and later to Pikoli, who, in an unusual move, was asked to make submissions on Ginwala’s findings.
Despite Pikoli handing in his submissions more than a week ago and the presidency promising to release the full report, it remains unclear when Motlanthe plans to do this.
A source close to the process told the M&G this week that Motlanthe was dealing with the issue “very cautiously because the finding is not quite what the ANC and its national executive committee was hoping for.
“Politically it would have suited the ANC if the inquiry had found that there was indeed political interference because it would have supported the Nicholson judgement, which is key to ANC president Jacob Zuma’s defence.”
In his September 12 ruling, Judge Chris Nicholson also referred to Mbeki’s alleged interference in saving Selebi from prosecution, highlighting this as another example of political meddling in the NPA’s work.
However, Ginwala and her panel rejected this theory, finding no proof of political interference by Mbeki in the Selebi case.
During the NPA’s appeal against Nicholson’s judgement in Bloemfontein last week, the judges of the Supreme Court of Appeal suggested they might set aside Nicholson’s assertions as irrelevant.
Pikoli argued at the Ginwala inquiry that he was the victim of a desperate attempt to save Selebi from being arrested by the Scorpions on corruption charges.
The Ginwala inquiry rejected this version, highlighting the 13 meetings between the presidency and Pikoli’s office on the Selebi matter and that Mbeki had not tried to prevent Pikoli from effecting Selebi’s arrest.
“There is no evidence to suggest that such political interference took place,” the report reads.
But the report is devastating about Simelane’s role in Pikoli’s suspension, calling him unreliable and dishonest and accusing him of dishonestly influencing Mabandla and leading her by the nose while she trusted him.
Simelane was the government’s main witness at the commission’s hearings and admitted helping Mabandla draft letters to Pikoli.
The report also slates his understanding of his powers as director general, saying he believed Pikoli should report to him on all matters relating to his (Pikoli’s) office. Ginwala found Pikoli rightly resisted this.
Simelane so misunderstood his own position, the report finds that he believed he had the power to change law.
The hearings revealed that Simelane hid a legal opinion on the powers of the NPA boss from Pikoli and Ginwala. He instructed senior counsel Vincent Maleka in January 2007 to clarify the lines of authority; Maleka found Simelane had “no authority at all” over the exercise of the powers, functions and duties of NPA functionaries.
Simelane testified that he disagreed with Maleka’s opinion and failed to give Pikoli a copy of it.
A source close to the inquiry told the M&G: “I cannot see how he [Simelane] will be able to continue in his job after [the release of the Ginwala report].”
However, the Ginwala report also finds that Pikoli should have been more vigilant regarding matters of security clearance.
It emerged at the inquiry that a number of Scorpions were not vetted by the National Intelligence Agency or that their security clearance status was not updated.
The inquiry also criticises Pikoli for allowing McCarthy too much freedom and for being insufficiently “sensitive” to what the Scorpions were doing.
Motlanthe is not bound by Ginwala’s recommendations. The final decision on Pikoli’s fate rests with Parliament, which must hear submissions from him if the president recommends dismissal.
If Motlanthe decides to reinstate Pikoli in line with Ginwala’s recommendations, he can do so without any delay.
The M&G understands Pikoli is seriously considering taking back his job if asked by Motlanthe.
Double trouble for Nicholson?
If the Supreme Court of Appeal (SCA) overturns Pietermaritzburg Judge Chris Nicholson’s ruling in the Jacob Zuma matter, it will be his second jurisprudential setback in less than two months.
Last Wednesday the SCA overruled a different Nicholson judgement, in an appeal also brought by the National Prosecuting Authority (NPA).
The case concerned three alleged drug dealers, Sarojini Moodley, her husband Shunmugam Moodley and Shawn Beharie, who were arrested in 2003 and charged with dealing in and possessing mandrax tablets.
The matter was subsequently postponed by the NPA to add charges of racketeering—a relatively new offence used by the prosecuting authorities to spread their net in convicting a syndicate of individuals involved in a single illegal scheme.
A draft charge sheet, including the three racketeering counts, was given to the defence lawyer in December 2003.
In March 2004 former NPA boss Bulelani Ngcuka authorised the racketeering charges, as required by the Prevention of Organised Crime Act.
Nicholson was asked to decide whether the racketeering charges were unlawful because Ngcuka had authorised the decision only after the issuing of a draft charge sheet.
With fellow Judge David Ntshangase concurring, he set aside the charges last year.
But he did so on grounds not raised by the defence. He found that Ngcuka’s written authorisation was too wide and lacking in detail in regard to matters such as the dates and places of the alleged offences.
“It would lead to abuse for such an authorisation to be permissible,” Nicholson ruled.
In a unanimous judgement by the SCA, written by Judge Douglas Scott, a full Bench dismissed Nicholson’s ruling and said it is “clearly not to be regarded as a precedent”.
According to a media summary issued by the court, the grounds relied on by the accused were invalid. “[W]hatever the position may have been prior to the national director’s [Ngcuka] written authorisation, once it was granted the prosecution was lawful. Accordingly the appeal had to succeed,” the judgement affirmed.
Nicholson ruled on September 12 that the NPA’s charges against ANC president Jacob Zuma were unlawful and that he should have been given an opportunity to make representations to the NPA before being recharged.
He also confirmed Zuma’s claims of political meddling in his trial by former president Thabo Mbeki and his Cabinet. But during the NPA’s appeal against this judgement last Friday, the Bench was frank in its criticism of Nicholson’s findings, hinting that the judgement could be overturned on January 12.—Adriaan Basson
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