The judgment ruling the appointment of national director of public prosecutions Menzi Simelane invalid reflects poorly on President Jacob Zuma, legal analysts have said, as he has systematically tried to surround himself with people close to him in the legal cluster.
- Read the full judgment here.
“The Simelane appointment was obviously to make sure that he never saw the inside of a dock again and that relates to things that are Zuma’s fault, not Simelane’s,” said Paul Hoffman, a director at the Institute for Accountability in Southern Africa.
The case was brought to the Supreme Court of Appeals by the Democratic Alliance, after its bid to have Zuma’s decision to appoint Simelane as the National Prosecuting Authority boss set aside, failed in the North Gauteng High Court last year.
The judgment set aside the findings of the high court, and ordered the president, Justice Minister Jeff Radebe and Simelane to pay the DA’s costs.
“Simelane was always a political appointment,” Hoffman added. “As the director general of justice, he took time off to travel to KwaZulu-Natal to sell the idea of disbanding the Scorpions and then joined the NPA to implement the vision of the ANC, which was very strange as this is a body that is supposed to be independent.”
Lawson Naidoo, executive secretary of the Council for the Advancement of the South African Constitution said that the judgment did not say that Simelane was not fit or proper but ruled that the processes followed did not match up with constitutional proccesses. This cast doubts on the quality of legal advice the president was getting. Naidoo said this was part of a range of issues where the president had taken decisions not in line with the Constitution.
Commentators were divided on whether Simelane was expected to appeal the Supreme Court of Appeals’ decision. Hoffman said Simelane was rumoured to be taking on a political job and was therefore unlikely to appeal.
However, presidential spokesperson Tlali Tlali said the ruling would be challenged in the Constitutional Court.
“Naturally, we are disappointed but respect the court’s judgment in this matter,” said Tlali on Thursday.
“We will study the judgment in order to understand its implications as it unfolds further. The court’s order must be referred to the Constitutional Court for confirmation as provided for in terms of section 172(2) of the Constitution. A final determination has yet to be made as to what our legal attitude to this matter at the Constitutional Court will be.”
Constitutional law expert Pierre De Vos predicted that the executive would challenge the appeal court ruling in the Constitutional Court, but added that it was hard to see how another court could disagree with the legal basis for the finding.
“It is a very sound judgment. You never know what somebody might put forward as an argument. They [the Constitutional Court] might interpret the facts differently, but I would be shocked if on the legal points they came to a different conclusion.”
The justice ministry said that Simelane will stay on until the Constitutional Court confirms an appeal court ruling setting aside his appointment.
“Advocate Simelane does not immediately have to vacate his post until the Constitutional Court hears the matter and decides whether to confirm the ruling or not,” Tlali said.
The DA’s Dene Smuts told the Mail & Guardian on Thursday: “We are very delighted by the judgment. We had major problems with his appointment. We did not think he was fit and proper for the position. We felt it was cadre deployment and are now looking forward to the president putting someone in the position who is fit and proper for the job.”
‘Misleading and untruthful evidence’
The foundation of the DA’s case against Simelane was the “misleading and untruthful evidence” he gave during the 2008 Ginwala Inquiry, when he was the director general in the department of justice and constitutional development.
The inquiry looked at the fitness for office of Simelane’s predecessor, Vusi Pikoli.
Ginwala severely criticised Simelane in her final report, calling him arrogant and condescending towards Pikoli.
Ginwala labelled his evidence before the inquiry “contradictory and without basis in fact or in law” and blamed him for suppressing the disclosure of information. This specifically referred to a legal opinion advising Simelane that he did not have authority over the NPA, as he had claimed.
Simelane’s conduct was “irregular” and Ginwala even suggested he might have contravened the NPA Act by drafting a letter to Pikoli that instructed him to abort the imminent arrest of former police boss Jackie Selebi.
No disciplinary proceedings
Although a formal inquiry was set up to inquire into Simelane’s conduct before Ginwala in February 2009, Justice Minister Jeff Radebe declined to take disciplinary proceedings against him. Instead he was appointed as deputy national director of prosecutions.
The DA argued that Zuma made Simelane’s appointment based solely on his CV, without taking into account his questionable behaviour during the enquiry.
Judge Mahomed Navsa found that Zuma was remiss in not taking the time to consider all the facts about Simelane, saying in his judgment: “I accept that the president must have a multitude of daily duties and is a very busy man. However when he is dealing with an office as important as that of the national director of public prosecutions, which is integral to the rule of law and to our success as a democracy, then time should be taken to get it right.”
He went on to say: “On the available evidence the president could in any event not have reached a conclusion favourable to Mr Simelane, as there were too many unresolved questions concerning his integrity and experience.”
The judgment was careful to prove precedent for judicial scrutiny of the president’s appointment of a public prosecutor.
In recent months, Zuma and other members of the executive have made several statements taking issue with an “unelected” judiciary passing judgment on executive decisions.
During a farewell to former chief justice Sandile Ngcobo earlier this year, Zuma said: “We must not get a sense that there are those who wish to co-govern the country through the courts, when they have not won the popular vote during elections.”
He added that the powers conferred on the courts could not be regarded as superior to the powers resulting from a mandate given by the people in a popular vote. — Additional reporting by Sapa