Many in the media were unpleasantly surprised that you decided against the Frene Ginwala commission of inquiry finding: that despite some of his weaknesses and failings, Vusi Pikoli, former national director of public prosecutions (NDPP), was fit to hold office. They said that you deliberately blew out of proportion her concerns about Pikoli’s lack of appreciation for national security without giving concrete and serious enough examples to validate your assessment and without appreciating the reasons she provided for why he was indeed fit to hold office. What made you make this decision and how do you justify it?

Well, firstly, the NPA Act is a badly written piece of legislation; actually a cut and paste type of legislation because what it has done is to take the section, which deals with the conditions for the dismissal of judges, and incorporated that into the conditions for the national director of public prosecutions. The appointment of a national director of public prosecutions is done like the appointment of a Director General. So my take on it is that, if we are to have the dismissal side of the same standard as that which is applicable to judges, the appointment side must be the same so that all and sundry are treated equally.

You see, when judges are appointed to the Judicial Services Commission, which is really a representative body that does the interviews of the individuals, and at the end of a very rigorous process ­ if there is one vacancy ­ the president is presented with four names from which to select. Now the same NPA Act says that if the NDPP is suspended the president must establish an inquiry, which will gather facts and information to enable the president to make a decision as to whether the person is fit to hold office. But the problem is that the Act does not indicate how such an inquiry is to be conducted. So this was the first such experience and the chair of the inquiry had to establish her own procedures.

But the Act does not envisage the inquiry to make a recommendation. It simply envisages the inquiry make findings as to whether the person is fit and proper and then for the president, on the basis of such findings, to make a recommendation to parliament, meaning that not even the president has the power to finally decide the matter, which is good for democracy.

The point is that the terms of reference of the Frene Ginwala Commission were to establish if Pikoli was fit to hold office, but she makes a finding on the basis of the original letter of suspension, saying that the government did not make a strong enough case for his suspension. However, in the course of her own enquiry she comes to the view that, had the government based suspension on the issue of his understanding of the broader workings of the NDPP within the framework of the other elements of state and national security, she would have found those reasons to have been valid.

The other problem is that, while she makes a recommendation that he be restored to office on condition that he be sensitised to broader security requirements, she does not say who will do that, how and on what basis, and whether he will be willing to submit to those requirements.

The final point is that perhaps those who criticised my decision did not read the entire report but only the recommendations. If people read the whole report they will hopefully realise that my decision was justified. I therefore do not believe that I blew out of proportion the matter of national security.

You also stated that this decision was taken without undue influence from any quarter. Is that really the case? Did Luthuli House not in fact convey to you their wish to remove Pikoli from office, because after all it was he who decided to prosecute Jacob Zuma, president of the ANC, in 2005? Against that background some would say that it is naïve to believe that Luthuli House did not just influence but probably determined your decision? Your response?

No, I find that quite an affront. The Act clearly states what the powers of the president are in such a matter. It is an affront for some in the media – both so-called analysts and legal minds ­ to conclude that my decision was politically inspired. Why don’t they say the same thing when the president appoints ministers or judges: that it was influenced by Luthuli House? Furthermore, they do not advance legal arguments as to why my decision is wrong. Instead they conveniently politicise my decision.

The media was also strongly critical of your rejection of numerous calls by many prominent and respected leaders for you to appoint a commission of inquiry into the arms deal, which has been plagued with stories of corruption from the outset. Why did you reject these calls, especially in the light of the detailed exposure by this paper at the end of 2008 about how allegations of arms deal “bribes” were paid, according to evidence obtained from documents the Scorpions are in possession of?

The answer is very simple. This issue of the arms procurement was investigated by three agencies: the auditor general, the public protector and the NDPP. They submitted a report which stated that all the allegations of wrongdoing which came to their attention during their investigations will be followed up by the NDPP. That means this is ongoing work into all and any allegations into criminal activities related to the arms deal that have been reported. That is precisely why Shabier Shaik was prosecuted and why I think these combined efforts are sufficient.

Surely, the fact that there are existing efforts at investigating the arms deal is not the same as an independent judicial commission of inquiry, which in pursuing the truth, will exercise greater independence, reach and rigour. Not so?

Well, when former president FW De Klerk and Archbishop Emeritus Desmond Tutu requested me to appoint such a commission, I pointed out to them that the Standing Committee on Public Accounts (Scopa) ­ as recently as before parliament went into recess in December ­ went through this matter once again because there were suggestions that some of the material that was used by the three agencies was sanitised. They then called for submission from those who made such claims and had information but came to the conclusion that there was no need to refer the matter to the auditor general, which those making allegations wanted. *1

Furthermore, those advocating a judicial commission of inquiry wanted its work and findings to have been completed before the election, which is completely impossible and suggestive of wanting to link it to campaigning, because they said it is important for the facts to be known before then.

The decision on the NPA appeal against the Nicholson judgement will be delivered next week, on January 12. A hugely momentous decision, which will determine if Zuma will face charges and therefore affect the feasibility for his presidency of the country, will be taken as a result. As president of the country but also his deputy in the ANC, what are your thoughts a week before that fateful date and what will likely happen if the Nicholson judgement is overturned and Zuma goes to court?

Remember that when the ANC had its national conference in 2007, elected Zuma as its president and decided that he will be its presidential candidate in the 2009 elections, he was not facing any charges. The NPA decided three days after he was elected to charge him. So as far as the ANC is concerned, if the Nicholson judgement is overturned, whatever happens thereafter must run its course, even if he is charged. He remains the ANC’s contender for presidency of the country in this year’s elections.

Do you have no regrets at all about the ANC’s decision to abolish the Scorpions and do you deny that it was linked to the NPA case against president of the ANC Jacob Zuma?

The reality about the DSO was that you had a parallel national police force with authority to investigate, to arrest and to prosecute. On the other hand you had the South African Police Services. Once you have two such bodies, the reality in practice is that you will always run into operational problems and conflict and that’s what happened. The DSO also did not cover itself in glory by being seen to be acting in an impartial, fair and just manner.

They also introduced the practice of publicising the beginnings of an investigation and therefore subjecting the accused in public to all sorts of allegations – not yet tested in court – and thereby a virtual trial by media. I was in fact one of the first people to complain about the heavy-handed, reckless and aggressive conduct of the Scorpions, almost as if they were a law unto themselves. Look at the belligerent manner in which they conducted those raids on Zuma’s homes and offices. You hardly endear yourself to the public by such conduct. So I have no regrets about their dissolution and absorption into the SAPS.

They even went so far as to announce to the media that Dr Zweli Mkhize and Phillip Powell in KwaZulu-Natal were going to be charged with gun-running activities. Thereafter they gave Powell amnesty and his passport and he went to England. Till today they have not retracted that damaging allegation to both men. At the Heffa Commission the judge criticised them for having divulged information that they wanted to charge Zarina Maharaj, but two years later no charges had been laid. Till today nothing has happened. How could they have made such damaging allegations against people in public and then just forget about it and not account for it? *2

With acknowledgements to Ebrahim Harvey and Mail and Guardian.