Archbishop Desmond Tutu says the high court application of former national director of public prosecutions (NDPP) Vusi Pikoli to have the decision to fire him set aside raised “novel questions which are crucial for the rule of law and the principle of legality”.

Tutu made the claim in court papers to be filed by Freedom Under Law, a heavyweight not for profit organisation, which will apply to be an amicus curiae (friend of the court) in Pikoli’s case.

In February, Pikoli applied to the North Gauteng High Court in Pretoria to review and set aside former president Kgalema Motlanthe’s decision to dismiss him, saying the decision was unconstitutional and “flawed”.

In the court papers, Tutu said it was “essential” that the decision be “tested against the relevant legal and constitutional principles”.

“This is particularly the case because the independence and security of tenure of the NDPP are critical to the rule of law,” he said.

Tutu sits on Freedom Under Law’s international advisory board along with other international luminaries. Its board of directors includes former Constitutional Court judge Johann Kriegler, senior advocates Jeremy Gauntlett and Dumisa Ntsebeza as well as Ezra Davids, senior partner at Bowman Gilfillan Attorneys.

The Inkatha Freedom Party (IFP) has also applied to be admitted as amicus in the case. But MP Koos van der Merwe said yesterday the party was still considering whether to pursue the application.

Freedom Under Law, “as a matter of principle and in the public interest”, wants to address the court on legal questions — including what should be the proper legal relationship between the NDPP and the executive and what makes a person “fit and proper” to hold office as NDPP.

While Pikoli did not object to Freedom Under Law being amicus, President Jacob Zuma ’s lawyers informed the organisation that Zuma would oppose its being allowed to make submissions on some of its points — because they were “not directly relevant to the issues in dispute”.

Tutu, however, disputed this, referring to various places in Motlanthe’s affidavit where they were raised.

The IFP’s attorney, Jaco Grobler, said the focus of the party’s contribution would be the procedure followed to dismiss Pikoli — focusing on the role of Parliament, which was “merely a rubber stamp”.

Van der Merwe said the IFP “contends that Parliament has failed to ensure accountability, responsiveness and openness by failing to recommend restoration of (Pikoli) to the office of NDPP”.

Freedom Under Law’s application has been provisionally set down to be heard on August 20.

rabkinf@bdfm.co.za

With acknowledgements to Franny Rabkin and Business Day.