National Director of Public Prosecutions by Dr Frene Ginwala
3 October 2007
President Thabo Mbeki has approved the Terms of Reference for the enquiry
into Adv Vusumzi Pikoli's fitness to hold the office of the National Director
of Public Prosecutions (NDPP). As stated previously, this enquiry is
established in terms of Section 12 (6) (a) of the National Prosecuting
Authority 32 of 1998.
The Terms of Reference cover two broad areas namely, the fitness of the
National Director to hold office and the irretrievable breakdown of the working
relationship between the Minister and the National Director.
The details of the Terms of Reference are detailed below:
In enquiring into advocate Pikoli's fitness to hold office of National
Director of Public Prosecutions, the following matters will be determined:
a) whether he, in exercising his discretion to prosecute offenders, had
sufficient regard to the nature and extent of the threat posed by organised
crime to the national security of the Republic
b) whether he, in taking decisions to grant immunity from prosecution to or
enter into plea bargaining arrangements with persons who are allegedly involved
in illegal activities which constitute organised crime, as contemplated in the
Act, took due regard to the public interest and the national security interests
of the Republic, as contemplated in section 198 of the Constitution, as well as
The Prosecution Policy.
With regard to the irretrievable breakdown of the working relationship
between the National Director and the Minister of Justice and Constitutional
Development, the enquiry will look into whether the National Director had
failed to appreciate the nature and extent of the Constitutional and legal
oversight powers of the Minister over the prosecuting authority.
The enquiry will also look into any other matters that may relate to the
fitness and propriety on the National Director to hold office.
The President has given Dr Frene Ginwala the authority to determine the
rules for the enquiry, including the seat and the time frames. Dr Ginwala will
announce the rules of the enquiry in due course and indicate when the enquiry
will commence. At the end of the enquiry, Dr Ginwala will submit her report to
the President who will determine when and how he will announce the findings of
the enquiry to the public. Should the President decide to remove the NDPP from
his post after receiving the report from Dr Ginwala, he will submit his
decision to Parliament as is required by the National Prosecuting Authority
(NPA) Act.
In the interest of transparency and the need to keep the public informed
about developments regarding the enquiry, the Terms of Reference are attached
and are being published for information.
The Government has full confidence in Dr Ginwala's ability to conduct the
enquiry in a professional manner and we once again appeal to members of the
media and the public to give the enquiry the opportunity to do its work as soon
as possible.
"Terms of Reference of the enquiry into the fitness of advocate Vusumzi
Pikoli to hold the office of National Director of Public Prosecutions
WHEREAS section 179 of the Constitution of the Republic of South Africa
provides, inter alia, for the establishment of a single national prosecuting
authority in the Republic;
AND WHEREAS section 199 of the Constitution provides for the establishment
of a single police service;
AND WHEREAS section 179(6) of the Constitution provides that the Cabinet
member responsible for the administration of justice must exercise final
responsibility over the prosecuting authority;
AND WHEREAS section 179(7) of the Constitution provides that all other
matters concerning the prosecuting authority must be determined by national
legislation
AND WHEREAS national legislation, being the National Prosecuting Authority
Act 32 of 1998, provides, in section 9, in part as follows;
(1 ) Any person to be appointed as National Director, Deputy National
Director or Director must.. .
(b) be a fit and proper person, with due regard to his or her experience,
conscientiousness and integrity, to be entrusted with the responsibilities of
the office concerned.
AND WHEREAS section 10 of the Act provides that the President must, in
accordance with section 179 of the Constitution, appoint the National
Director;
AND WHEREAS section 12 of the Act provides in material part as follows:
12 Term of office of the National Director and Deputy National Directors
(1) The National Director shall hold office for a non renewable term of 10
years, but must vacate his or her office on attaining the age of 65 years
...
(5) The National Director or Deputy National Director shall not be suspended
or removed from office except in accordance with the provisions of subsections
(6), (7) and (8).
(6) (a) The President may provisionally suspend the National Director or a
Deputy National Director from his or her office, pending such enquiry into his
or her fitness to hold such office as the President deems fit and, subject to
the provisions of this subsection, may thereupon remove him or her from
office-
(i) for misconduct;
(ii) on account of continued ill health;
(iii) on account of incapacity to carry out his or her duties of office
efficiently; or
(iv) on account thereof that he or she is no longer a fit and proper person to
hold the office concerned.
AND WHEREAS section 33 of the Act provides in material part as follows:
33 Ministerâs final responsibility over prosecuting authority
(1) The Minister shall, for purposes of section 179 of the Constitution,
this Act or any other law concerning the prosecuting authority, exercise final
responsibility over the prosecuting authority in accordance with the provisions
of this Act.
(2) To enable the Minister to exercise his or her final responsibility over
the prosecuting authority as contemplated in section 179 of the Constitution,
the National Director shall, at the request of the Minister-
(a} furnish the Minister with the information or a report with regard to any
case, matter or subject dealt with by the National Director or a Director in
the exercise of their powers, the carrying out of their duties and the
performance of their functions;
(b) provide the Minister with reasons for any decision taken by a Director
in the exercise of his or her powers, the carrying out of his or her duties and
the performance of his or her functions;. . .
(e) submit the reports contemplated in section 34 to the Minister;
and
(f) arrange meetings between the Minister and members of the prosecuting
authority.
AND WHEREAS the President, acting pursuant to the provisions of section
12(6)(a) of the Act, on September 24, 2007 provisionally suspended the National
Director from his office, pending such enquiry into his fitness to hold office
as the President deems fit.
NOW THEREFORE, the President, acting pursuant to the provisions of section
12(6)(a) of the Act, hereby establishes an enquiry into the fitness of the
National Director, Advocate Vusumzi Pikoli, to hold this office.
1. THE ENQUIRY
The President hereby appoints Dr Frene Ginwala to conduct this enquiry.
2. ISSUES TO BE DETERMINED BY THE ENQUIRY
The issues to be determined by the enquiry are:
2.1 The fitness of Advocate V Pikoli, to hold the office of National
Director. In particular:
2.1 .1 Whether he, in exercising his discretion to prosecute offenders, had
sufficient regard to the nature and extent of the threat posed by organised
crime to the national security of the Republic.
2.1.2 Whether he, in taking decisions to grant immunity from prosecution to
or enter into plea bargaining arrangements with persons who are allegedly
involved in illegal activities which constitute organised crime, as
contemplated in the Act, took due regard to the public interest and the
national security interests of the Republic, as contemplated in section 198 of
the Constitution, as well as the Prosecution Policy.
2.2 Whether the relationship between the National Director and the Minister
has irretrievably broken down. In particular,
2.2.1 Whether he failed to appreciate the nature and extent of the
Constitutional and legal oversight powers of the Minister over the prosecuting
authority;
and such other matters as may relate to the fitness and propriety of the
National Director to hold office.
3. RULES OF THE ENQUIRY
The person chosen to conduct the Enquiry, Dr Frene Ginwala, shall determine
the rules of the enquiry.
4. SEAT OF THE ENQUIRY
Dr Ginwala shall determine the seat of the enquiry, which may be moved to
any other location, as appropriate.
5. REPORT OF THE ENQUIRY
At the end of the enquiry Dr Ginwala shall submit a report to the President.
All documents filed during the enquiry shall form part of such report."
Enquiries:
Themba Maseko (Government Spokesperson)
Cell: 083 645 0810
Issued by: Government Communications (GCIS)
3 October 2007
