Publication: Mail and Guardian Issued: Date: 2007-11-16 Reporter: Sam Sole Reporter: Adriaan Basson Reporter: Pearlie Joubert Reporter: Nic Dawes

Mpshe in The Hot Seat

 

Publication 

Mail and Guardian
Date

2007-11-16

Reporter

Sam Sole, Adriaan Basson,
Pearlie Joubert, Nic Dawes

Web Link

www.mg.co.za

 

A series of critical challenges looms for the National Prosecution Authority (NPA) as the embattled organisation:

    * prepares to re-charge presidential hopeful Jacob Zuma;

    * awaits the report of the review panel probing the decision to charge police commissioner Jackie Selebi;

    * faces potential exposure of its low-grade war with the justice ministry at the Ginwala inquiry; and

    * grapples with policy proposals that would effectively end its independent law-enforcement capacity.

The Mail & Guardian has established that the Zuma prosecution team has prepared a revised indictment in the light of last week's Supreme Court of Appeal (SCA) decision ruling on the legality of the searches of Zuma and his likely co-accused, the French Thint group.

The team was in Pretoria this week to brief acting national director of public prosecutions Mokotedi Mpshe ahead of a decision about recharging Zuma.

Sources close to the process said the toughest decision is not whether to charge Zuma, but when.

The same sources insist that there is no political pressure to charge Zuma now, before the ANC's watershed leadership contest, but that a number of legal factors must be weighed up.

Chief among these is the certainty that Zuma will lodge a Constitutional Court appeal against the SCA decision. Even if Zuma is charged, this would probably lead the state to suspend the prosecution until the Constitutional Court rules on whether documents seized in the raids were legally obtained.

The new documents will make a key difference by showing a considerably extended flow of funds to Zuma, rendering his public explanation that they were "loans" far more difficult to sustain.

It may make sense to await the final decision on what evidence can be used before finalising the charges.

Against that, charging Zuma now would likely trigger his long-threatened application for a permanent stay of the proceedings, based on the claim that his rights to a fair and speedy trial have been compromised.

Starting that process would avert later delays as the two sides can open another front in what Zuma's lawyers have approached as a legal Stalingrad, fought point by point.

Meanwhile, the NPA remains tight-lipped about its other ticking legal time-bomb -- the review of suspended prosecutions chief Vusi Pikoli's decision to arrest Jackie Selebi.

The review panel, comprising Frank Dutton, advocate Mbuyiseli Madlanga, Peter Goss and advocate Shamila Batohi, was due to report to Mpshe last Friday, but has not done so.

None of the panel members contacted by the M&G was prepared to comment on progress, but NPA spokesperson Tlali Tlali promised the panel would table its recommendations "very soon".

However, nothing is likely to happen soon at the Ginwala inquiry, appointed by President Thabo Mbeki to probe Pikoli's "fitness for office".

Pikoli's suspension was apparently triggered by the Selebi arrest warrant. But having averted that crisis, government seems to be struggling to present solid evidence to Ginwala.

Pikoli told the M&G this week that his legal team had written to Justice Minister Brigitte Mabandla, who formally tabled the complaint against Pikoli, asking her to remedy "defects" in the government's case.

He declined to elaborate, but the M&G understands from a source sympathetic to Pikoli that the government's submission contains allegations that were made anonymously or without substantiating background facts *1.

Ginwala's spokesperson, Lawson Naidoo, confirmed that Pikoli had informed Ginwala that he could not say when he would respond, before the government dealt with his queries *2.

The M&G understands that, among other things, the government has complained about the NPA's decision to charge the Equatorial Guinea coup plotters after their release from Zimbabwe and return to South Africa.

The case, which failed, deeply embarrassed the South African Secret Service by publicly exposing its detailed knowledge of the coup plans. Pikoli is accused of using the case to make government, or other agencies, look bad.

Another complaint, from Mabandla herself, is that she was kept out of the loop regarding NPA decisions to prosecute Adriaan Vlok and Johan van der Merwe. It is understood that Pikoli can refute this claim without much difficulty.

Pikoli declined to comment on the charges against him, but told the M&G he would soon table a submission calling for the Ginwala inquiry to be held in public.

Naidoo said Ginwala would only decide on how to proceed once Pikoli's final response to the allegations was received.

The M&G has also learned that in the aftermath of Pikoli's suspension, NPA special director Kalyani Pillay has resigned.

Pillay worked in Pikoli's office and was one of his closest and most trusted allies. She is highly regarded by senior prosecutors, who appreciate her understanding of complex legal matters.

Pillay this week confirmed her resignation. Asked if it related to the Pikoli saga, she retorted: "The only thing I am prepared to confirm is my resignation."

Insiders say her move is in recognition of the fact that Pikoli will not be allowed to return to his post, whatever the outcome of the Ginwala inquiry -- and that the reform of government's criminal justice cluster means the end of an era for the NPA.

Some in the NPA see the plan, to create what the Cabinet describes as a "legislative management structure" to co-ordinate the different arms of the system, as the first step to implementing the resolution of the ANC's June policy conference.

In what was seen as a setback for President Thabo Mbeki, and a victory for Selebi, delegates resolved that South Africa should have one police service, under the national commissioner's command, and that the Scorpions should become a police unit.

With acknowledgements to Sam Sole, Adriaan Basson, Pearlie Joubert, Nic Dawes[] and Mail and Guardian.


*1       The Government, on behalf of Mbeki, are merely playing for time.


*2      And very successfully it is plain to see.