The suspended national director of public prosecutions, Vusi Pikoli, has asked for a copy of the report into his fitness to hold office that former National Assembly speaker Frene Ginwala delivered to President Kgalema Motlanthe on Tuesday.

Pikoli was suspended from office in September of last year by former president Thabo Mbeki.

Pikoli’s attorney, Aslam Moosajee of Deneys Reitz Attorneys, said yesterday that because Pikoli was the subject of the report, and since the president would make his decision to reinstate or remove Pikoli based on the report, “we believe that Mr Pikoli is entitled to a copy of the report”.

Moosajee said they were “disappointed” to have first heard of the delivery of the report to Motlanthe in the media.

Ginwala’s inquiry was established in terms of the National Prosecuting Authority Act (NPA Act) and was provided with terms of reference by Mbeki.

The terms of reference also allowed Ginwala to make rules for the inquiry.

The NPA Act, the inquiry’s own rules and the terms of reference all refer to a report being made to the president. But they do not prohibit Ginwala from making the report available to Pikoli or to the public.

Pikoli also supported the public release of the document. “The inquiry was held in the public domain. The taxpayer paid for the inquiry to happen. I think it is only fair that the findings of the inquiry be released publicly,” he said yesterday.

But Lawson Naidoo, secretary of the inquiry, said yesterday that if “you read the terms of reference of the inquiry in context, the inquiry was set up by the president to advise the president”.

Naidoo said the inquiry was not a commission of inquiry in terms of the Commissions Act and was therefore not binding on the president.

He said it was an advisory inquiry and the president was not obliged to accept anything contained in the report.

Naidoo said Ginwala did not want to “detract from the president’s discretion to act in the manner he sees fit”, adding: “All these requests and questions should be directed to the president.”

Despite numerous attempts, the Presidency could not be reached for comment yesterday.

Moosajee said even if there was a provision in the law which refused Pikoli access to the report, he doubted that it “would have withstood constitutional scrutiny”.

The reason for Pikoli’s suspension was contested.

Mbeki attributed it, among other reasons, to a breakdown of the relationship between Pikoli and former justice minister Brigitte Mabandla.

But Pikoli has consistently said it was in order to stop the impending arrest and prosecution of police commissioner Jackie Selebi.

As required by the NPA Act, an inquiry was established, chaired by Ginwala, to look into Pikoli’s fitness to hold office. During a hearing of the inquiry, Pikoli said Mabandla had instructed him not to proceed with the arrest and prosecution of Selebi until she was satisfied that it was in the public interest to do so — an instruction that he considered unconstitutional.

Should Motlanthe wish to remove Pikoli permanently, his decision would have to be confirmed by Parliament within 14 days of his making it.

Parliament would then have 30 days to decide whether Pikoli should be reinstated — a decision binding on Motlanthe. But there is no time limit in the NPA Act as to when Motlanthe must make his decision.

With acknowledgements to Franny Rabkin and Business Day.