It is remarkable that advocate Vusi Pikoli should feature in the news in 2015 in two related historical matters. First: the bugging of his offices in 2007 by operatives illegally engaged by the South African Revenue Service (Sars). Second: the quest to compel his erstwhile colleagues in the National Prosecuting Authority (NPA) 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 in 2007. He endeavoured to carry out his functions without fear, favour or prejudice, as behoves a conscientious and constitutionally compliant appointee. Because of his willingness to act independently he was suspended by Thabo Mbeki, then president, primarily for going after the corrupt chief of police, Jackie Selebi. Pikoli was later dismissed by Kgalema Motlanthe, caretaker president at the time.
None of Pikoli’s predecessors nor his successors have ever seen out their 10-year term. The reason for his premature and expensive hiatus in public service is revealed in the detail of the two current news stories.
The national director of public prosecutions incumbents have become an endangered species because of 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.
Zuma’s troubles are ongoing, with a judicial review of a decision to withdraw – one 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 developments.
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 kidnapping of Simelane by the security police in 1983 is a further illustration of the inability of the NPA to do its work properly because of political interference.
The security branch operatives who kidnapped Simelane appeared before the Truth and Reconciliation Commission (TRC) and were given amnesty for their deed. No one asked for amnesty for killing Simelane, who was interrogated, tortured and subjected to kopdraai (brainwashing) techniques unsuccessfully aimed at making her an askari. She disappeared.
The current application brought by Simelane’s sister, Thembi Simelane-Nkadimeng, who is the current mayor of Polokwane, seeks declaratory and mandatory relief aimed at compelling a prosecution of the suspects in the disappearance or, alternatively, an inquest.
The matter 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.
Pikoli not only confirms an affidavit by the prosecutor in charge of the subunit 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, Selebi. Last-mentioned 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 the NPA director certainly contributed to his suspension and ultimate dismissal.
The failure of any of his successors to pursue the “political cases”, though 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.
The formulation of prosecution policy is the constitutional task of the NPA director. The minister’s role is merely to concur.
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.
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 constitutionally guaranteed fair trial. 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.
It is a matter of great public concern that the NPA is not given the independence to fulfil its legal and constitutional mandate. The Simelane family has done well to bring this failure 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.
Paul Hoffman is a director of Accountability Now, accountabilitynow.org.za