Publication: Mail and Guardian Issued: Date: 2008-05-09 Reporter: Adriaan Basson Reporter: Sello S Alcock

Pikoli Lays Bare State's Blatant Lies



Mail and Guardian




Adriaan Basson, Sello S Alcock

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The government's astonishing bid to protect police National Commissioner Jackie Selebi from being arrested was laid bare this week in minute detail by suspended prosecutions boss Vusi Pikoli.

Compelling evidence produced by Pikoli at the Ginwala inquiry in Johannesburg indicates President Thabo Mbeki and several other senior government officials colluded to save Selebi, sacrificing Pikoli in a way that, according to the suspended National Prosecuting Authority boss, was illegal, a sham and spurious.

The "sham" culminated in Justice and Constitutional Development Minister Brigitte Mabandla ordering Pikoli to drop the Scorpions' Selebi investigation. When he refused, Mbeki showed him the door.

The state has denied this version, accusing Pikoli of insisting on doing things his way. Director general in the presidency Frank Chikane testified this week that Pikoli's suspension was not about charging Selebi, but about "the way in which it was going to be done".

"At no stage did the president or myself say no official in government could be arrested," Chikane testified. He and Mbeki were, however, surprised when Pikoli presented them with the Selebi warrants. Chikane described Pikoli's attitude as one of: "It doesn't matter what process you set up, I'm going to do it my way."

Pikoli's submission was made to former parliamentary speaker Frene Ginwala's inquiry into his suitability for the job of national director of public prosecutions (NDPP), set up by Mbeki late last year. The public hearings started in Johannesburg on Wednesday.

But the submission reveals that government lied to the public about the reasons for his suspension and that most of the accusations against him could not be substantiated by witnesses. Indeed, some of the "irregularities" he is accused of occurred after his suspension.

The Ginwala hearings went ahead after Pikoli refused to accept a government settlement offer in terms of which his suspension would be lifted and he would resign. Government has since refused to release its submissions to Ginwala or affidavits it has of crucial witnesses, but Pikoli has made his sworn statement public.

His affidavit describes how Mbeki, Justice and Constitutional Development Minister Brigitte Mabandla, justice director general Menzi Simelane, acting NDPP boss Mokotedi Mpshe, Mbeki's legal adviser Mojanku Gumbi and senior South African Police Service staff manoeuvred to prevent Selebi from being arrested and prosecuted.

Pikoli's legal team contends that even in the Ginwala forum government is "blatantly" attempting to protect Selebi. And, they say, there is no doubt that the real reason for suspending Pikoli was to protect the embattled police chief.

One of government's main charges against Pikoli -- that he failed to inform Mabandla or Mbeki of the Selebi investigation and of the warrant for the police chief's arrest -- is dispelled by details of numerous meetings each had with Pikoli about the investigation.

In March 2006, two weeks after the Scorpions obtained an affidavit linking Selebi to organised crime, Pikoli briefed Mabandla on the developments. A few days later he met Mbeki, who assured him that he would not interfere in Project Bad Guys, the Scorpions' investigation into the alleged criminal network surrounding slained mining magnate Brett Kebble.

As the investigation developed, Pikoli held more meetings with Mabandla and Mbeki where he briefed them on new leads involving Selebi. In November 2006 Mbeki allegedly recommended that Pikoli meet Selebi to "raise [his] concerns directly with him".

Pikoli, who knew Selebi from his days in exile, said this was a "particularly difficult" meeting for him. "At this meeting both of us ended up in tears and Mr Selebi was vocal about the DSO [Directorate of Special Operations, the Scorpions] being used against him."

But Pikoli persisted with the probe and expressed his concern to Mbeki when the police became reluctant to give the Scorpions documents they requested. After numerous abortive attempts to secure the documentation, Pikoli agreed to apply for a warrant to search police headquarters and the crime intelligence offices in May last year. He informed Mbeki of his plans in a memorandum.

A concerned Mbeki called Pikoli on his cellphone and asked for more time "to intervene". The president also asked Mabandla and Defence Minister Mosiuoa Lekota to meet Pikoli.

After giving them the memorandum he had given Mbeki, Pikoli spent two hours explaining the allegations against the police commissioner. According to Pikoli, Lekota was satisfied that Selebi had a case to answer and raised concerns only about the use of accomplice evidence, which, Pikoli explained, was common practice and sanctioned by law.

Plea bargains entered into with Kebble murder-accused Glenn Agliotti and the mining boss's former security chief, Clint Nassif, form part of government's charge that Pikoli is not a fit person to head the NPA. But his legal team points out that both these plea bargains were signed after he was suspended as NDPP.

After the meeting with Lekota and Mabandla Mbeki asked to meet Pikoli and Scorpions boss Leonard McCarthy in the presence of the commissioner and senior police staff. "The president directed that the SAPS must cooperate with the DSO and provide the information requested by the DSO."

After two more failed attempts to procure copies of documents from the police, Mabandla was informed that the Scorpions had no option but to apply for search warrants.

"The minister viewed this as a crisis and indicated that it would shake the foundation of the country. She urged us not to have a long-drawn trial and to resolve matters quickly. She asked me to inform the president before we took the next step," Pikoli said.

After he and his colleagues had tried, unsuccessfully, to arrange a meeting with Mbeki for almost two months, they decided to apply for an arrest warrant. On September 10 the warrant was granted by the Randburg Magistrate's Court and the next day Pikoli met Mabandla to update her on this development.

She agreed to set up a meeting with Mbeki, which took place four days later. At the meeting, also attended by the director general in the presidency Frank Chikane, Mbeki expressed surprise at the arrest and search warrants and said he was unaware that the SAPS had refused to co-operate.

"I was astonished that this came as a surprise to the president, because in my memorandum of 7 May 2007 it was made clear that the DSO intended to apply for a search warrant," Pikoli says. He was asked to produce a new report on the case and did so.

On September 18 Pikoli received the letter from Mabandla reported on in last week's Mail & Guardian. Mabandla instructed Pikoli to drop the Selebi investigation, furnish her with the entire Selebi docket and the probe until she had satisfied herself "that sufficient information and evidence does exist for the arrest of and preference of charges".

"This order was in all respects unlawful and a violation of both the Constitution and the NPA Act ... I realise today that it was this turn of events and my refusal to submit to the minister's order which culminated in my suspension a mere five days later," Pikoli says in his affidavit.

On Thursday Simelane, under cross-examination by Pikoli's senior counsel, Wim Trengove, said he did not believe Mabandla's letter to be an instruction to Pikoli to stop the investigation. He also said that Pikoli could have threatened national security had he gone ahead with Selebi's arrest.

It emerged this week that a letter from Mbeki to Mabandla requesting her to obtain more information from Pikoli about the Selebi case preceded her letter. Mabandla followed up her letter with a telephone call the next day. Pikoli said she "burst into a tirade", asked him "whether [he] thought she was a moron" and said she was "tired of this rubbish".

"I denied the accusations and reminded her that I had been briefing her since March 2006. The minister apologised for her outburst," said Pikoli.

On September 21 Chikane called Pikoli to set up a meeting with Mbeki on September 23. But the president asked Pikoli to meet Mabandla before their meeting. On the afternoon of September 23 Mabandla told Pikoli there had been a breakdown of trust and asked him to resign. Pikoli denied such a breakdown, saying he had always had a "cordial relationship" with the minister.

He refused to step down, saying that if he did so he would be lying to the nation. "The minister said: 'Vusi, this is all about integrity and one day I will talk.' I could not understand what she was referring to." *1

From this meeting Pikoli went to Mbeki, who told him he would be suspended if he did not resign. Pikoli said he "waited with the president while the letter of suspension was being prepared". Mbeki originally told him that he was being suspended because of plea bargains and witness immunity, but these reasons have changed significantly over time.

After establishing what occurred after his suspension Pikoli became convinced that the Selebi warrants were the sole reasons for the action against him. He says that Mpshe, appointed acting NDPP by Mbeki, confirmed to him that the president and Mabandla were upset that the DSO had applied for warrants without consulting Mbeki. In addition, Mpshe, on Mabandla's instructions, held back a media statement in which the management of the NPA expressed support for Pikoli.

According to an affidavit from Mpshe, Gumbi asked him to apply for the cancellation of the Selebi warrants and Simelane prepared a draft affidavit in support of the cancellation application.

On Thursday Simelane testified that Mpshe was "exaggerating" about his role in drafting the affidavit. He only assisted Mpshe in considering different "options" on how to take the Selebi matter forward.

Pikoli's counsel, Tim Bruinders, disclosed that the police have yet to give the Scorpions the documents they requested months ago for the Selebi investigation. Selebi is scheduled to appear in the Randburg Magistrate's court on June 26.

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With acknowledgements to Adriaan Basson, Sello S Alcock[] and Mail and Guardian.

*1       One day all will be revealed and that will be that the NDPP's suspension had nothing to do with Chikane or Selebi.

One day when there is a new president and the minister is looking for ingratiation the minister will talk and it will all be about integrity, actually the complete lack of it.

It's all enough to make Tim Jan taste very sweet indeed.