The Incredible Mr Simelane |
Publication | Mail and Guardian |
Date |
2008-08-15 |
Reporter |
Pearlie Joubert, Adriaan Basson |
Web Link |
The Director General of Justice, Menzi Simelane, asked senior members of the
National Prosecuting Authority (NPA) to spy on their boss Vusi Pikoli.
Pikoli was suspended by President Thabo Mbeki last year on the grounds of a
breakdown of trust between the NPA head and Justice and Constitutional
Development Minister Brigitte Mabandla.
The Mail & Guardian can reveal that Simelane became so involved in the NPA's
business that Pikoli took the unusual step of complaining to Mabandla about her
DG's behaviour.
"[A]n impression is being created that there are two heads of the NPA or there's
co-management. This manifests itself in members of the NPA engaged in core
business being called by the DG without me being requested or informed. I find
this untenable and am not going to allow it to continue any longer," Pikoli
wrote to Mabandla in January 2006, six months after Simelane's appointment to
the Justice Department.
Mabandla ignored Pikoli's plea. In January last year Simelane wined and dined a
senior advocate in the NPA, who this week told the M&G of the meeting. He asked
not to be named for fear of victimisation.
I spy on Pikoli
"At the beginning of last year Menzi Simelane asked me to spy on Vusi Pikoli
and told me that either Pikoli or himself will have to go because both of them
can't stay. He said, 'It's him or me and watch this space because I'm going
nowhere,'" the source says. Simelane denies saying this.
This meeting took place nine months before Mbeki suspended Pikoli. The M&G has
established that Simelane contacted "a number" of Pikoli's staff from as early
as the beginning of 2006 in an effort to gain information on Pikoli. This
included an expensive supper with senior prosecutors in Cape Town.
Pikoli confirmed in an interview this week that Simelane indeed contacted and
interfered with NPA staff "so much that I wrote a letter already in 2006 to [Mabandla]
drawing her attention to the fact that Simelane was meddling in my affairs".
"Yes, Simelane did request meetings, [and] organised supper and lunch with
senior people in the NPA where he was less than flattering about me and my
ability and where he asked people for information," Pikoli said. The 2006 letter
to Mabandla was recently admitted as evidence to the Ginwala inquiry into
Pikoli's fitness to hold office.
Pikoli says he doesn't know why Simelane was "so personally focused" on him.
"I know that Simelane spoke, at various meeting, to staff members of the NPA and
very senior people within the NPA. I don't know why it was so personal for him,"
he said. "A very senior member of my staff told me at the beginning of last year
that Simelane was telling people that I will not stay in my job for long. The
'it's either-him-or-me story' I've heard from more than one person."
The senior NPA advocate interviewed by the M&G said Simelane was
"particularly" interested in why the NPA was pursuing the
prosecution of African National Congress (ANC) president Jacob Zuma;
whether the NPA was planning to charge Mbeki and other senior ANC officials on
the basis of the Truth and Reconciliation Commission (TRC) refusing them
amnesty; and why Pikoli was not acting against "corrupt white NPA officials".
An Mbeki canard
The advocate "hardly knew" Simelane when his secretary phoned, requesting a
meeting during working hours early last year.
"I discussed the matter with my immediate boss and I agreed to meet Simelane
thinking that he might want to offer me another position within the Justice
Department. At our meeting he started attacking Pikoli out of the blue. He said:
'That's an arrogant man who doesn't listen or take
instruction.'
"Simelane was clearly very upset with the position [in the NPA of advocate]
Anton Ackermann and said that Vusi won't act against him and his apartheid-era
agenda. He said to me, 'I know that you guys in the NPA
are planning to prosecute the president and some other ANC members. I
know that for a fact and we'll resist any prosecution of TRC cases.'"
Ackermann heads the NPA's priority crimes litigation unit. The unit was formed
in 2005 to look at failed applications for amnesty from the TRC and to decide
whether to prosecute them criminally.
Among the cases assessed by this unit was the amnesty application by Mbeki and
36 other ANC leaders for unspecified crimes that may have been committed while
the organisation was banned and in exile. An example in this application was the
planting of landmines during the apartheid-era.
The TRC ruled that it could not give Mbeki and other ANC leaders amnesty for
such a broad and unspecific application.
In 2004 the then NPA head, former national director of public prosecutions
Bulelani Ngcuka, publicly confirmed that the ANC leaders would not be
prosecuted.
These failed amnesties became topical again last year when Rapport reported that
Ackermann had written to the police asking for more information on the 37 files
with an eye on possible prosecutions. The NPA vehemently denied this and said
Ackermann's "letter" was a fake.
Among the ANC leaders refused amnesty were embattled police National
Commissioner Jackie Selebi, Social Development Minister Zola Skweyiya,
Intelligence Minister Ronnie Kasrils, Safety and Security Minister Charles
Nqakula, businessman and ANC stalwart Tokyo Sexwale and ANC treasury general
Mathews Phosa.
Whispering campaign
Pikoli said this week that the "persistent rumour" that he was going to
prosecute Mbeki and others who had been denied amnesty had been "kept
alive for many years" by senior people within the South African Police Service.
"I told Simelane that we [the NPA] have said publicly that President Mbeki and
other Cabinet ministers are not under investigation for the planting of
landmines and that that case is closed, but he said
he has had discussions with the president about the fact that Vusi and his team
are planning to prosecute ANC leaders," the advocate said.
"[Simelane] made it clear to me that he told the president that Pikoli and the
NPA are planning to prosecute him. He told me that he has met with Jackie Selebi,
with the NIA's [National Intelligence Agency] Director General, Manala Manzini,
and with Loyiso Jafta from the Presidency to discuss their unhappiness about the
way Vusi is conducting his business and his prosecution plans.
"He asked me what Pikoli does when he goes overseas; he asked me what Pikoli's
special adviser Kalyani Pillay's role in the NPA is, and he said, 'I
can't see why you people must prosecute Jacob Zuma because I myself am not a man
who believes in circumstantial evidence.'
"I felt like he was tapping me for information and that he wanted me to give him
information that he can use against Pikoli. I was very uncomfortable because he
was testing my loyalty to Pikoli," the advocate said. The advocate informed
Pikoli of his meeting with Simelane.
Pikoli said: "I heard about a number of such meetings that Simelane held with
staff members. I asked the minister to intervene on my behalf, but as far as I
know, it didn't happen." The suspended NPA head said he phoned Simelane and
asked him to "lay off" his staff. "I'd had enough and told him so."
In addition to being the government's main accuser of Pikoli during the
investigation of the NPA boss, Simelane has been a staunch critic of the
Scorpions and argued for the dissolution of the unit in a submission to the
parliamentary hearings on the matter.
Mr Spin
Simelane has also assisted the ANC in KwaZulu-Natal with its anti-Scorpions
submission to the public hearings on the bills.
Simelane is central to the ANC's post-Polokwane spin strategy that says the
review of the criminal justice system always included the dissolution of the
Scorpions.
However, Deputy Justice Minister Johnny de Lange, who is in charge of the
review, this week again publicly confirmed that closing down the Scorpions was
not originally part of the plan. De Lange's campaign to beef up the country's
crime-fighting capabilities was the result of negotiations between business and
the government.
The private sector's main contributions to the process have come through
Business against Crime, which is a vocal advocate for the Scorpions' survival.
People familiar with the internal wrangling within the Justice Department have
told the M&G that perceived tensions between De Lange and Mabandla were a
symptom of the real battle between De Lange and Simelane over who would have de
facto control over the department.
According to an analysis that has wide currency in the government and
Parliament, Mabandla is both indecisive and inefficient,
and the two men have jostled to fill the vacuum for four years.
It was recently revealed at the Ginwala inquiry's public hearings that Simelane
claimed he had extensive power over the NPA, despite legal opinion by senior
advocate Vincent Maleka that as DG he only had accounting responsibilities over
the unit.
In a recent move, interpreted by NPA insiders as a further clampdown on the
institution's independence, Justice Department chief operating officer Khotso de
Wee was moved to the NPA where he is acting as the institution's chief
executive.
Additional reporting by Sello S Alcock and Nic Dawes
Simelane responds to the Mail & Guardian's questions
1. Why did you decide to contact certain NPA staff and discuss with them the
actions and activities of advocate Pikoli?
I never contacted any NPA staff to discuss activities of advocate Pikoli. If I
met NPA staff, it is in the context of a specific matter involving the
department.
2. Do you believe it was proper of you, as accounting officer of the Department
of Justice, to request subordinates in the NPA effectively to spy on advocate
Pikoli?
There is no official of the NPA that I asked to spy on any official or person,
in particular advocate Pikoli. I have never had any reason to do such a thing.
3. Why did you ask a senior NPA member, who for security reasons can't be
identified, to provide you with information on Pikoli's plans with the
prosecution of Jacob Zuma?
I never discussed such a matter with any official of the NPA. What I discussed
with the official concerned who is a prosecutor was a general approach to
prosecutions by the NPA and the specific prosecutor's views in light of the
strategy being used by the lawyers in the cases of Mr Zuma and Mr Selebi. The
issues discussed related to points of law those cases raise and also of academic
interest. This discussion was informal in a function attended by myself and the
official concerned.
4. Why did you tell a senior NPA member that you saw no reason why the NPA must
continue to prosecute Zuma because it only had circumstantial evidence against
him and you didn't believe in circumstantial evidence?
This is not correct. The issue that we were discussing related to the answer to
question three above. The point of law that we shared was the use of
circumstantial evidence by prosecutors and the evidentiary challenges in court
as a result. I indicated that if I were a prosecutor, I would not as a matter of
practice rely on circumstantial evidence for the burden that it places on
prosecutors. The prosecutor concerned indicated that generally prosecutors share
that view but that such evidence can be useful if it is overwhelming. Depending
on the case.
5. Do you believe it was proper of you to relay your opinion on the Zuma
prosecution to a subordinate?
Not applicable. The prosecutor concerned is not my subordinate.
6. Why did you ask a senior NPA member to provide you with information on
advocate Pikoli's overseas travels?
Not applicable. All travel requests sent to the department require the
accounting officer to approve the expenditure. The request contains the
reasons/motivation for the request. It is therefore not necessary to make
enquiries in this regard.
7. Why did you ask a senior NPA member about the role and activities of advocate
Pikoli's special adviser, Kalyani Pillay?
I did not ask any official for this information.I have always known the role of
the special adviser in relation to her functions.
8. Why did you tell a senior NPA member that advocate Pikoli was incompetent,
that he didn't listen or take instructions? Do you believe this was proper
behaviour by you?
I explained the issues that were being raised in the hearing.
9. Why did you tell a senior NPA member that "we" will resist any prosecution on
TRC matters, and that you knew the NPA was busy planning the prosecution of
Mbeki and 37 other ANC members on TRC matters, when you knew that was not the
case?
I never said this.
10. Why did you believe the NPA was going to prosecute Mbeki and 37 other ANC
members, and why did you tell Mbeki that this was the case, when you knew this
to be untrue?
Again I never made this statement.
11. Did you attempt to influence Mbeki on his relationship with and opinion of
advocate Pikoli?
I have never had an audience with the president.
12. Why did you, National Intelligence Agency Director General Manala Manzini,
police National Commissioner Jackie Selebi and head of criminal justice in the
Presidency Loyiso Jafta meet about the TRC prosecutions?
At various meetings we discussed the task team that was set up with the NPA on
the processing of these matters.
13. Why did you in a meeting with former Scorpions boss advocate Leonard
McCarthy discuss with him your problems with advocate Pikoli and issues
pertaining to the working of the NPA and the Scorpions?
This is not correct. My discussions with McCarthy related to how the Khampepe
recommendations could be implemented. We discussed the proposals made by the
Scorpions and the cluster and how they affected the various powers of the NDPP
and the head of the DSO in terms of the NPA Act.
14. Do you believe it was proper conduct by you to discuss your differences with
advocate Pikoli with advocate McCarthy, who is advocate Pikoli's subordinate?
This discussion did not take place.
15. Why did you tell a senior NPA member "either Vusi Pikoli goes or I go --
both of us can't stay here. It's either him or me"? Do you have an agenda
against advocate Pikoli?
Nothing of the sort was ever said to anyone, let alone an NPA official. I have
never had an agenda against advocate Pikoli. I also have no reason to have an
agenda against him.
16. Why did you meet members of the ANC's KwaZulu-Natal leadership last week
Friday to discuss with them their submissions to the public hearings on the NPA
Amendment Bill?
To brief them on the issues raised in the Bills in Parliament (South African
Police Service Amendment Act and National Prosecuting Authority Amendment Act)
and the review of the criminal justice system.
17. What did you tell the ANC during this meeting regarding its submissions on
the future of the Scorpions?
They were briefed of the issues raised in the briefing to Parliament.
18. Do you believe it was proper for you as the most senior civil servant in the
Department of Justice and accounting officer of the NPA to give private
briefings to a political party regarding government policy? Please elaborate.
To my knowledge there is no prohibition to briefing on civil servants to
briefing government stakeholders on the work of government especially once the
processes have become public processes.
19. What is your view regarding the separation of powers between party and
state? Do you believe that by briefing the ANC you have violated this
separation? Please elaborate.
Briefly, there is a difference between the two. Therefore government work
focuses on everyone irrespective of political affiliation. I don't believe that
there was a violation of the principle of separation of powers.
20. Who paid for your trip to Durban to brief the ANC?
Myself.
21. Did you file a leave application form to be absent from work on Friday when
you visited the ANC in Durban?
Yes.
22. The M&G believes that the Department of Justice's chief operating officer,
Khotso de Wee, was recently transferred to the NPA. What will be his role at the
institution?
He is acting CEO because of a vacancy. He will perform the functions of a CEO as
per the delegations.
With acknowledgements to Pearlie Joubert, Adriaan Basson and Mail and Guardian.