Minister's actions were criminal, says Pikoli's lawyer

President Thabo Mbeki's letter to Justice Brigitte Mabandla - given to her the day before she ordered prosecuting boss Vusi Pikoli not to arrest Jackie Selebi - has been released.

But, while Mbeki's letter gives no instruction to Mabandla to order Pikoli not to progress with any corruption prosecution of the national police commissioner, Justice Director-General Menzi Simelane this morning stated that her instructions to Pikoli were "directly related" to the president's communications to her.

In an apparent about-turn on her ruling that the letter would not be publicly released because government believed it was "privileged", inquiry head Dr Frene Ginwala this morning announced the document could be made publicly available.

In the letter, written six days before Mbeki suspended Pikoli, the president said he deemed it "appropriate that you (Mabandla) obtain the necessary information from the National Director of Public Prosecutions (Pikoli) regarding the intended arrest and prosecution of the National Commissioner (Selebi).

"This would enable me to take such informed decisions as may be necessary with regard to the National Commissioner.

"Kindly keep me informed of progress in this regard. Needless to say, this matter is urgent," Mbeki wrote.

In affidavits before the Ginwala Inquiry, which has been tasked with determining his fitness to hold office, Pikoli revealed that he had briefed Mbeki 10 times about the case against Selebi.

He also stated he had given Mbeki sworn affidavits and detailed summaries related to the case.

Pikoli's advocate, Wim Trengove SC, in cross-examination of Simelane this morning, put it to him that the "only concern (expressed in the president's letter) would be to deal with the implications of the forthcoming arrest and prosecution".

"The minister, however, tells Pikoli to stop … until she is satisfied that he should go ahead.

"The steps taken by the minister seem unrelated to the president's request," Trengove said.

Simelane, who earlier denied Mabandla's letter had ordered Pikoli to stop the Selebi prosecution, quickly retorted: "I disagree, it was directly related."

He insisted that both Mbeki and Mabandla's letters needed to be read "in context".

Trengrove also today put it to Simelane that Mabandla should have been liable for an unlimited fine or imprisonment for up to 10 years for trying to stop Pikoli from arresting and prosecuting Selebi.

Trengrove said this is in contravention of the National Prosecuting Authority Act.

The act stipulated that no organ of state and no member and employee of a state organ may improperly interfere in or obstruct the prosecuting authority or any members in executing the carrying out of their duties and functions.

It further provided that doing so is punishable by an unlimited fine or imprisonment of up to 10 years, or both.

However, Simelane "disagreed wholly". "I agree with you that improper interference is a crime. I do not agree that the minister improperly interfered as you suggested," said Simelane.

Simelane also came under fire for a written response he had given to Pikoli's lawyers on November 2, some two months after the state had obtained its aborted warrants against Selebi.

Asked by Pikoli's legal team to provide them with any documentation or correspondence from the presidency related to the Selebi matter, Simelane responded: "We are not aware of any prosecution processes that may have been initiated against the national commissioner.

"I did not see the letter," he said, in explanation of why he had not handed the letter over.

Simelane - who drafted the affidavit used to cancel the Selebi arrest warrant" - also vehemently denied government had interfered with Pikoli's work as prosecuting head in any way.

Both Pikoli and acting NPA head Mokotedi Mpshe have stated under oath that Mbeki was briefed about the case against Selebi since 2006.

Trengove yesterday hammered Simelane over his failure to make any reference to the fact, when he wrote his first complaints against Pikoli to the inquiry, that Pikoli's refusal to back down over Selebi had played any part in his suspension.

Trengove began his heated cross-examination of Mabandla's right-hand man by putting it to him that "it was clear by history that the trigger for the suspension was the insistence by Mr Pikoli to go ahead with the arrest and prosecution of Mr Selebi".

Simelane responded that it was his understanding Pikoli had been suspended for a variety of reasons.

"I am not talking about the reasons or the justification. I am talking about the trigger, the thing that triggered the suspension. Are you suggesting that there was anything other than the Selebi prosecution that triggered the suspension?" Trengove asked.

"When the decision was decided to suspend, I wasn't part of it … What I do know is that in my discussion with the minister it was a number of issues, and that was one of them," Simelane countered.

September 17 2007

Dear Minister

I have been informed that the National Director of Public Prosecutions has taken legal steps to effect the arrest of and the preference of charges against the National Commissioner of the police service.

As you are aware, our constitutional and legal framework recognises that the prosecution of offenders is pursued by the prosecuting authority on behalf of the State, represented by our duly elected government.

Accordingly, clause 179(6) of our Constitution provides that the Cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority.

Section 33(1) of the National Prosecuting Authority Act repeats this constitutional directive. This Act goes further, in section 33(2), to provide, among others, that the National Director of Public Prosecutions shall, at the request of the Minister of Justice, furnish the Minister with information with regard to any case, matter or subject dealt with by the National Director or a Director.

The National Commissioner is appointed by and accountable to the President of South Africa.

In view of the constitutional responsibilities of the President with regard to the Office of the National Commissioner of the police service, I deem it appropriate that you obtain the necessary information from the National Director of Public Prosecutions regarding the intended arrest and prosecution of the National Commissioner. This would enable me to take such informed decisions as may be necessary with regard to the National Commissioner.

Kindly keep me informed of progress in this regard. Needless to say, this matter is urgent.

With acknowledgements to Karyn Maughan, Boyd Webb and The Star.