/ 1 July 2008

Simelane’s little secret exposed

Justice department Director General Menzi Simelane ignored legal advice to back off the National Prosecuting Authority (NPA) and concern himself only with the organisation’s finances.

This emerged from public hearings of the Ginwala inquiry this week into suspended NPA chief Vusi Pikoli’s fitness for office. Simelane was called ”dishonest” by Pikoli’s counsel, Wim Trengove, when it was revealed that Simelane failed to inform Pikoli and the inquiry about the existence of the legal advice.

Simelane was subjected to two days of gruelling cross-examination by Trengove about the state’s contention that Pikoli failed to account properly to Simelane about the affairs of the NPA.

This, together with his actions in the Jackie Selebi and other investigations, forms the backbone of government’s complaint that Pikoli is not a fit and proper person to lead the NPA.

Pikoli denies the charge and accuses Simelane of meddling in the affairs of the constitutionally independent authority.

Trengove presented a January 2007 legal opinion by senior counsel Vincent Maleka and his junior, Maki Nobanda, to Simelane on his powers in relation to the NPA.

Simelane told the inquiry that he and Pikoli differed fundamentally over who had final authority over the NPA and that he was right and Pikoli wrong.

He failed, however, to mention the Maleka opinion, which he commissioned with an eye to solving the dispute. ”Did you ever take legal advice on the matter [of who is ultimately responsible for the NPA]?” Trengove asked Simelane twice. On both occasions the justice director general answered ”no”.

As Trengove paged through his file to retrieve a document Simelane hastily changed his mind, saying he now recalled receiving legal opinion on the matter.

Trengove shot back: ”You said you didn’t and as you saw me getting the document you now remembered?” Yes, Simelane said. He must correct himself. He did indeed solicit legal opinion on the role of the national director.

Trengove proceeded to read the lawyers’ opinion to the commission: ”Our view is that the director general has no authority at all over the exercise of powers, functions and duties by functionaries of the NPA.

”All that the director general is entitled to do is to exercise financial responsibility on the financial requirements of the NPA.”

Trengove: ”So that was their opinion. What they’re saying is that Mr Pikoli is right and you are wrong.”
Simelane: ”I didn’t read it to say I’m wrong.”

Trengove: ”It says in the first paragraph the director general has no powers at all.”

Simelane: ”I don’t agree with that sentence in its totality.”

Trengove continued to lambaste Simelane for not sharing the Maleka opinion with Pikoli, or Ginwala.

”I want to suggest to you that an honest response would have been you telling Mr Pikoli: ‘We’ve had a difference of opinion.

”Here is senior counsel’s opinion, let’s live by that view.’ Wouldn’t that have been an honest response?”
”I could have given him the view, but that would not have resolved the issues,” Simelane replied.

Trengove responded: ”You concealed it because the opinion agreed with him and disagreed with you.

”Your conduct in relation to the opinions were blatantly dishonest. An honest officer of the department, honestly seeking to assist the commission would have disclosed the fact that you held senior counsel opinion, which supported Pikoli and disagreed with you.”

The state was expected to announce on Friday whether it would call more witnesses or close its case. Pikoli is then expected to take the stand in his own defence.