Former president Kgalema Motlanthe ’s reason for dismissing Vusi Pikoli was a “contrived after- thought”, the former prosecutions chief says in new court papers.

Pikoli was replying to affidavits by Motlanthe, former president Thabo Mbeki and former justice minister Brigitte Mabandla in his application to review and set aside Motlanthe’s decision to fire him.

At stake in the case, according to Pikoli, is the “rule of law and particularly the principle of prosecutorial independence”.

Pikoli was suspended by Mbeki in September 2007. As legally required, an inquiry was established, chaired by former speaker of the National Assembly, Frene Ginwala, to determine whether Pikoli was fit to hold office.

Ginwala submitted her report to Motlanthe in November last year.

Ginwala found that the government had failed to make its case against Pikoli and recommended that he be reinstated.

However, Ginwala expressed concerns about Pikoli’s appreciation of national security issues, which she said had not formed part of the government’s complaints against him.

These included that when Pikoli informed Mbeki that he was about to arrest police commissioner Jackie Selebi, Mbeki asked for two weeks in order to create an “enabling environment” for the arrest, but Pikoli refused and gave Mbeki one week.

It was the “one week-two week” issue that was ultimately relied on by Motlanthe to fire Pikoli.

But in his latest court papers, Pikoli said the issue about the time required for Selebi’s arrest was a “contrived afterthought” because it was never raised by Mabandla or Mbeki before he was suspended.

Nor was it mentioned by Mbeki in Pikoli’s suspension letter. And, Pikoli said, it was not raised by the government at the inquiry ­ even after Ginwala instructed the government to put all its complaints before her.

Pikoli said that even at the inquiry’s hearing, when he referred to the one week-two week conversation in his evidence, government’s counsel accused him of fabricating it.

Pikoli said Mbeki’s acknowledgement of the conversation in his affidavit was a significant turnaround and vindicated Pikoli’s long-held view that the sole reason for his suspension was to prevent or delay the impending arrest of Selebi.

He said that, because the one week-two week complaint never formed part of the government’s case against him, he was not “called upon to answer and rebut” it.

This was why, despite Ginwala raising concerns, she “recognised” that she could not take them into account in determining whether he was fit to hold office, Pikoli said.

Ginwala should not have “made any findings against me beyond the charges against me”, he said.

After Motlanthe received Ginwala’s report, he asked Pikoli to make submissions to him, particularly on Ginwala’s adverse findings. But Pikoli said it was “quite clear that (Motlanthe) was not open to persuasion at all”.

Pikoli stood by his previous suggestion that Motlanthe and the African National Congress (ANC) leadership wanted a “more malleable” prosecutions chief, so as not to thwart ANC president Jacob Zuma ’s presidential ambitions.

This claim was rejected by Motlanthe, who called it “insulting and inappropriate”.

However, as prosecutions chief, it would have fallen to Pikoli to take the initial decision to prosecute Zuma for corruption.

Pikoli in his court papers, however, said he “persisted in his submission of an ulterior purpose”.

“Since then, Mr Zuma or people acting on his behalf, have indeed persuaded the acting national director to withdraw the criminal charges against him and he has been elected president.”

rabkinf@bdfm.co.za

With acknowledgements to Franny Rabkin and Business Day.