New information has emerged which flatly contradicts the presidency’s denial that President Thabo Mbeki acted to shield police National Commissioner Jackie Selebi by suspending National Director of Public Prosecutions Vusi Pikoli.
Information obtained by the Mail & Guardian shows that Pikoli’s suspension marked the beginning of a scramble to protect Selebi, which saw acting prosecutions director Mokotedi Mpshe — appointed by Mbeki as Pikoli’s replacement — make two late-night interventions to prevent moves against Selebi from going ahead.
Well-placed sources in the justice department said Mpshe drove to the home of senior Randburg magistrate Stanley Mkhari last Friday night to ask for the cancellation of Selebi’s warrant of arrest.
The warrant, which triggered the Pikoli crisis, was obtained by the Scorpions from another senior Randburg magistrate on September 10.
It is understood that Mpshe presented an affidavit to Mkhari motivating for the cancellation of the warrant in terms of the Criminal Procedure Act.
Mkhari subsequently complied, the sources confirmed.
This week Mkhari claimed he ‘doesn’t know anything about the warrantâ€, but declined to deny the version put to him by the M&G.
Mpshe allegedly tried to do the same thing last weekend when he approached Johannesburg High Court Judge Phineas Mojapelo with a request to cancel a separate set of search and seizure warrants.
These warrants had been obtained from Mojapelo by the Scorpions on September 14 as a prelude to planned raids on Selebi’s home and offices at police headquarters.
It is unclear when the Scorpions planned to execute this warrant. It is understood that Mojapelo refused to retract the order and the file containing the warrants, and that the supporting affidavit by Scorpions lead investigator Andrew Leask is still in his safekeeping.
Mpshe confirmed in a live radio interview this week that Mbeki asked him to review the case against Selebi with a view to determining whether there was sufficient evidence to proceed with the case.
The National Prosecuting Authority (NPA) confirmed for the first time this week what the M&G has been reporting since last year — that Selebi is the subject of a criminal investigation.
The actions by Mpshe are one aspect of what appears to be a desperate move by the president to shield Selebi, a powerful and long-standing political ally.
The saga began on September 10, when Scorpions Gauteng boss Gerrie Nel obtained a warrant for Selebi’s arrest after approaching Randburg magistrate Cheryl Loots.
The M&G has established that the charges levelled against Selebi include corruption, fraud, racketeering and defeating the ends of justice.
A senior source in the justice department said the corruption charge derived from allegations that Selebi had received bribes of ‘hundreds of thousands of rands†from Glenn Agliotti, the alleged organised crime boss whom Selebi described as his ‘friend, finish and klaarâ€.
There are contradictory versions about what exactly happened next. According to senior intelligence sources, Mbeki discovered what was about to happen and asked Minister of Justice and Constitutional Development Brigitte Mabandla to intervene.
Sources close to the Scorpions say that after obtaining the warrant, the NPA tried to communicate the existence of the warrant to Mbeki, who was not available.
Government spokesperson Themba Maseko this week declined to answer questions about Mbeki’s interactions with Pikoli.
Government sources confirmed, however, that Mabandla wrote to Pikoli on September 19 asking him to explain why she had not been consulted about the decision to charge Selebi. She allegedly demanded access to the Selebi docket and asked Pikoli to resign.
Pikoli wrote back to the minister the next day, outlining his understanding of his and her respective duties, warning that she might be guilty of obstructing justice if she told anyone about the charges against the police chief.
On September 21, Mbeki is understood to have called a meeting of the national security council. Two days later, he suspended Pikoli.
The initial justification offered by the presidency — a breakdown in the relationship between Pikoli and Mabandla — appeared increasingly thin as the central role of the Selebi investigation emerged.
Instead, the evidence indicates that Mbeki sparked a crisis by effectively countermanding Pikoli’s independent decision, protected by the Constitution, to charge Selebi — and by effectively intervening to block raids on the police chief.
Mbeki has since appointed a recognised ally, ANC national executive committee member Frene Ginwala, to conduct what amounts to a review of Pikoli’s prosecutorial decisions.
While the presidency has tried to distance itself from the claim that the Selebi case will be central to the Ginwala inquiry, the terms of reference leave little doubt that the NPA’s investigation of Selebi will determine Pikoli’s fate.
In what is now the primary thrust of the inquiry, Ginwala will have to determine whether Pikoli:
- in exercising his discretion to prosecute offenders, had sufficient regard for the nature and extent of the threat posed by organised crime; and
- whether, in taking decisions to grant indemnity to or enter into plea bargain arrangements with persons allegedly involved in organised crime, he ‘took due regard to the public interest and the national security interests of the Republicâ€.
This aspect appears tailor-made to attack the NPA’s strategy of offering deals to those involved in the murder of mining magnate Brett Kebble — including Agliotti — in return for evidence against Selebi.
Remarks by Maseko this week confirmed that there is a political attempt to second-guess Pikoli’s prosecutorial decisions.
Referring to Mabandla, Maseko said: ‘The minister needs to be satisfied that the director has sufficient evidence in front of him to proceed with those particular cases.â€
A senior legal source close to Pikoli told the M&G that the terms of reference constitute a review of Pikoli’s decision. ‘The grounds for firing Pikoli are essentially the same as a judge — you can’t fire a judge because you disagree with his decision.â€
Another figure close to Pikoli, who declined to be named, told the M&G: ‘It is outrageous what the president is doing. It is an abuse of power.â€
He said Pikoli would not go quietly: ‘He said to me, ‘I would resign if I knew the institution of the NPA would not be hurt — but there will be irreparable damage if I go’.â€
The M&G has established that Pikoli has consulted top Senior Council Wim Trengove about his suspension.
Former vice-chancellor of Unisa and constitutional law expert Professor Marinus Wiechers warned that Mbeki’s perceived protection of Selebi may lead to a constitutional crisis.
He slammed Mbeki for not appointing a judge to head the inquiry into Pikoli’s fitness to hold office. ‘There is no way that Ginwala can avoid going through criminal dockets to determine his fitness. This is the only way she will be able to ascertain the facts. But this is an investigation for a judge to conduct.
‘How is she [Ginwala] going to investigate this? She has no judicial powers.â€
Wiechers predicted that the Ginwala commission would have to produce two reports — a confidential one containing details of the cases before her, and a public report containing recommendations.
‘But what happens if Pikoli disputes the outcome of her inquiry? Then the secret report will have to be reviewed. The fact that this matter is not being handled by a judicial commission means it is flawed. I can’t see how this thing won’t become messy.â€
The ‘greatest ironyâ€, Wiechers said, is that Mbeki asked for evidence when allegations about Selebi’s criminal activity were first published in the M&G. ‘Now, when evidence is brought to him, he suspends everyone around him!â€
Govt to report in 10 days
The government will submit its report detailing the circumstances and events leading up to the suspension of advocate Vusi Pikoli to the Ginwala commission within 10 days.
Announcing this on Thursday, commission chairperson Frene Ginwala confirmed that Pikoli will then be asked to submit his response, together with any additional submissions he may wish to make.
‘Inasmuch as the inquiry will need to consider the ‘national security interests of the republic’, any decision on the extent to which the inquiry may be held in public will be determined at a later stage,†Ginwala said in her statement.
The inquiry will be conducted in Gauteng, with the venue still be confirmed.
Ginwala said she had been assured of access to the necessary ‘independent legal, administrative and logistical resourcesâ€.
Meanwhile, the DA has lodged an application in terms of the Promotion of Access to Information Act with the NPA to obtain copies of the warrants issued for the arrest of Selebi.
What a mess
The suspension of prosecutions head Vusi Pikoli has been a comedy of communication blunders, contradictory statements and climb-downs, write Rapule Tabane and Adriaan Basson. The following puts the events in sequence:
Sunday September 23: President Thabo Mbeki suspends Pikoli and appoints Mokotedi Mpshe as his acting replacement.
Monday September 24: The government’s communications agency, GCIS, issues a statement saying Pikoli was suspended because of ‘an irretrievable breakdown†in his working relationship with Minister of Justice and Constitutional Development, Brigitte Mabandla, which had adverse implications for the National Prosecuting Authority (NPA) and the functioning of the criminal justice system. GCIS announces an inquiry under the NPA Act into all matters pertaining to the functioning and role of the national director of public prosecutions.
Thursday September 27: Government refuses to comment on reports that the courts have granted a warrant for the arrest of police National Commissioner Jackie Selebi. The NPA and police also refuse to comment.
Saturday September 28: GCIS CEO Themba Maseko announces that former parliamentary speaker Frene Ginwala has been appointed to head the inquiry into Pikoli. But Ginwala appears unaware of her appointment when the Sunday Times contacts her for comment. She promises to speak to the media after speaking to the president.
Sunday September 30: The Sunday Times quotes Selebi as vowing he will never be arrested and that the warrant for his arrest does not exist. Selebi then denies making the statement, as it created the impression that he considers himself above the law.
Monday October 1: For the first time, government raises the issue of Pikoli’s fitness to hold office, announcing that Ginwala will investigate this. Government also denies the allegation that Pikoli’s suspension was designed to protect Selebi, saying there is no reason for Mbeki to do this. But the statement does not explicitly deny a connection between the suspension and the Selebi matter.
Tuesday October 2: Maseko says Mpshe will review all high-profile cases before the NPA, while newspapers run front-page reports that Jacob Zuma’s corruption case will be among those reviewed. Mpshe then goes on to radio to deny this, objecting that he has only been asked to review the Selebi investigation. In doing this, he confirms for the first time that the NPA has been investigating Selebi. Maseko insists that, from now on, government and the NPA will speak with one voice.