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Closed-door sessions in inquiry into official's misconduct "may result in suppression of information of fundamental public importance," says FXI

(FXI/IFEX) - The following is an abridged FXI press release:

FXI disappointed with ruling of Ginwala Enquiry into the suspension of Adv V Pikoli

The Freedom of Expression Institute (FXI) is disappointed that Dr Frene Ginwala, Chairperson of the Enquiry into the suspension of Adv Pikoli, Head of the South African National Director of Public Prosecutions (NDPP), at the commencement of the proceedings refused to entertain representations by E-TV's counsel, Adv K. Hofmeyr, that the broadcaster be allowed to make representations before she closes any session of the hearing.

Ginwala's ruling effectively means that if neither of the parties to the proceedings, namely the Government or Adv Pikoli, oppose ad hoc applications for certain evidence to be heard in camera, which the Chairperson indicated she would entertain, the hearing of such evidence will be held behind closed doors. The media, as a third party, will not be given a hearing in this regard, which may well result in the suppression of information which is of fundamental public importance.

We believe that the public has an overriding right to know about matters of such fundamental significance and that third party intervention in order to oppose segments of the hearing being held in camera should be heard.

During September 2007, Dr Frene Ginwala was appointed by the President of the Republic of South Africa, President Thabo Mbeki, to conduct an Enquiry into the fitness or otherwise of the National Director of Public Prosecutions ("NDPP"), Adv V. Pikoli, to hold office ("the Enquiry").

Pikoli was suspended by the President under the terms of section 12(6)(a) of the National Prosecuting Authority Act 32 of 1998 ("the Act"), which empowers the President to suspend the NDPP from office pending an enquiry into the fitness or otherwise of the NDPP to hold that office. (. . . )

Ginwala deemed it appropriate to hold hearings at which the parties would be given an opportunity to present their cases and to address the issues raised by the terms of reference. The hearing of the parties submissions commenced on 7 May 2008 in Johannesburg. Ginwala indicated that the hearings would be open to the public unless there is a good reason why any portions of the hearing should be held in camera. Furthermore, she indicated to the parties that as and when an application for in camera hearings is made she will consider it at that stage and make an appropriate ruling.

Upon learning of this instruction to the parties, E-TV instructed its attorneys to launch an application to the Enquiry, seeking to be to be given notice of any application by a party to the Enquiry for a portion of the Enquiry to be heard in camera, and that upon receipt of such notice that they be afforded an opportunity to make representations to the Chairperson in relation to such application. The Chairperson went so far as to refuse to recognize any other parties standing at the hearing. This precludes E-TV and any other party, other than the Government or Adv Pikoli, from contesting any attempt to close parts of the hearing.

While we are aware that the Chairperson's mandate is limited to the gathering of information in this matter, we believe that the exposure of all information relevant to the enquiry should be open to the scrutiny of the public. The public has a right to know whether the President and/or the Minister of Justice were intervening in order to protect the Commissioner of Police, particularly since subsequent revelations have indicated that there is a possibility that the Commissioner has at least a prima facie case to answer.

Given the extent and the fundamental importance of the key positions which Adv Pikoli and his adversaries hold the public is entitled to know the full details. The suppression of this kind of information will inevitability lead to an increased climate of distrust in the probity of the actions of the President, the Minister of Justice and Adv Pikoli.

It is imperative that the media come together to oppose the exclusionary attitude that the Enquiry has adopted towards reasonable and legitimate third party interests in the proceedings.

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