Axed prosecuting boss Vusi Pikoli's is determined to be reinstated and is
unwilling to accept a damages payout from the government instead of being
returned to office, according to his attorney.
Pikoli's attorney Aslam Moosajee of Deneys Reitz said his client was "delighted"
after North Gauteng High Court Judge Ben du Plessis dismissed every argument
used by President Jacob Zuma to justify his mooted permanent appointment of
Pikoli's successor, interdicting the president from making good on his plans
until the High Court had ruled on Pikoli's November 2009 challenge to his
firing.
Moosajee said Pikoli regarded the judge's ruling as "a step in the process" of
challenging his dismissal.
"Mr Pikoli wants the principle of prosecutorial independence to be upheld. It
should not be that, should the president get rid of a national director of
public prosecutions he does not like, that unlawful action is swept away with
damages," he said.
Finding that Pikoli had "made out a prima facie case that the decision to remove
him from office was not authorised by law and therefore invalid", the judge was
also unconvinced by Zuma's warning that the court should be careful about
"interfering" in his plans to appoint a permanent National Director of Public
Prosecutions (NDPP).
"The public has an interest in the president and the court upholding the
constitution.
"Allowing the president now to appoint a new NDPP might ultimately turn out, if
(Pikoli) is successful, to have countenanced the unlawful exercise of public
power," he said, adding that this was "not in the interest of society as a
whole".
Judge du Plessis also cast serious doubt on Zuma's suggestion that, should
Pikoli show that his suspension by president Thabo Mbeki and later dismissal by
president Kgalema Motlanthe were unlawful, he could be compensated with a
damages payout.
"To award damages to (Pikoli) might countenance the invalid exercise of public
power," he said.
Pikoli believes he was suspended by Mbeki to protect then-national police
commissioner Jackie Selebi from prosecution for corruption and later fired by
Motlanthe to ensure that charges against Zuma were dropped.
The Presidency has dismissed these claims as unfounded "conspiracy theories" and
insists Pikoli's axing was above board.
But Judge Du Plessis yesterday raised questions about Motlanthe's justification
of Pikoli's firing. Motlanthe based his decision to sack Pikoli on the Ginwala
inquiry's finding that Pikoli did not have adequate regard for national security
concerns in his handling of the Selebi matter - despite being a "fit and proper"
person for his position.
The judge said that if Frene Ginwala's findings were incorrect, the basis for
the president's decision falls away.
"I have pointed out that Pikoli put forward facts that, on a prima facie basis,
show that the factual findings (made by Ginwala) are not correct.
"On that basis, Pikoli has made out a prima facie case that the decision to
remove him from office was not authorised by law and therefore invalid."
"The president respects the ruling and will abide by it," Zuma's spokesman,
Vincent Magwenya, said yesterday, but reiterated Zuma's "view that the
appointment of a permanent head of the National Prosecuting Authority (NPA) is
critical to the country's efforts to tackle crime". Any further comment would
come "if necessary" only after Judge Du Plessis's written judgment had been
studied, Magwenya said.
Zuma may not appoint a new NDPP until after Pikoli's application to have his
removal set aside is heard in November.
In a terse, one-line statement, the ANC said it "accepts and respects the
ruling".
Opposition parties - which had vehemently opposed Pikoli's removal in the first
place - welcomed the decision, asserting that he had been unfairly treated.
DA shadow justice minister Dene Smuts said the court's finding yesterday that
Pikoli had established a prima facie case that his removal was illegal was
"encouraging" and could see opposition parties vindicated for their stance.
While the Ginwala inquiry set up by then-president Thabo Mbeki to assess
Pikoli's fitness for office had found him to be a man of "unimpeachable
integrity", he was removed by then-president Kgalema Motlanthe on grounds that
he had shown insufficient regard for matters of national security.
This decision was later endorsed by Parliament in February, despite a bitter
fight by opposition parties, after the ANC used its majority in the House.
Parties had "questioned the legality of the process", Smuts said.
"They did not believe that it was fair to remove him for reasons that did not
appear in the Ginwala inquiry's terms of reference".
ID leader Patricia de Lille said Zuma was the third president (after Mbeki and
Motlanthe) to "harass Pikoli for doing his job properly and the president must
now allow Pikoli to exhaust the legal processes, just like he himself has done
on many, many occasions. Considering his expert knowledge of the workings of the
courts, President Zuma should know that Pikoli has the right to go to the High
Court, the Supreme Court of Appeal and finally the Constitutional Court,".
By refusing to cave in to political pressure, Pikoli - who was offered a
reported R10 million in damages, but refused it, preferring to challenge his
axing in court - had shown he was "a man of admirable integrity" De Lille said.
"One would hope that President Zuma has learnt through his own experience that a
fair trial also includes the right to appeal."
Cope said the "entire saga" of the "manipulation of the NPA and the sacrificing
of Mr Pikoli" was one that "threatens to set a dangerous precedent".
"We have long been of the view that Mr Pikoli has been unfairly treated," Cope
national spokesman Phillip Dexter said.
"As in the case of the recent nomination of Judge Ngcobo as the Chief Justice,
the government seems more intent on having its own way rather than doing the
right thing.
"It rides roughshod over the constitution simply to achieve its political
objectives."
He said such behaviour led to a "paralysis that threatens our institutions". The
government should sit down with Pikoli and negotiate a settlement, Dexter said,
rather than "indulge in this abusive behaviour that is fast becoming the modus
operandi of the executive".
The Freedom Front Plus accused Zuma of "wasting taxpayers' money" by not
immediately reappointing Pikoli.
With acknowledgements to Karyn Maughan, Gaye Davis
and Cape Times.
This is mighty.