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Simelane case shows need for rational executive decisions

Serjeant at the Bar

The government might have thought that, after the ConCourt delivered its judgment Sanral's e-tolling matter, a new era had been ushered in.

Menzi Simelane. (Paul Botes, M&G)

One in which the court would restrict its power of review, thus granting the executive a blank cheque.

The latest offering by the court, in the Democratic Alliance's challenge to the appointment by President Jacob Zuma of Menzi Simelane as the national director of public prosecutions, places the earlier judgment in its proper context.

In summary, these are the salient facts. After the dismissal of Vusi Pikoli as national director of public prosecutions, Simelane was appointed. The DA challenged this decision on the basis that the relevant legislation required the appointee to be a "fit and proper" person, with attention paid to his or her experience, conscientiousness and integrity. The DA argued that had the president considered the findings of the Ginwala commission, set up to inquire into Pikoli's fitness for office, he could never rationally have appointed Simelane, so damming were the commission's findings on his's integrity.

The DA successfully challenged the appointment in the Supreme Court of Appeal. Justice Minister Jeff Radebe and Simelane then appealed to the Constitutional Court.

Radebe, who had advised the president on the appointment, argued that it was solely for the president to determine the process of the appointment: he could engage in a subjective assessment of the strengths, weaknesses and qualities of the person considered for the office.

By contrast, the appeal court adopted a test of what constituted a reasonable appointment decision and whether this decision had breached the doctrine of separation of powers.

In a luminous and eloquent exposition of the law, Justice Zac Yacoob, writing for a unanimous court, observed that the applicable legislation provided that the appointee had to be a fit and proper person, "not a fit and proper person in the president's view".

Subjective determination
Thus, whereas any appointment such as the national director of public prosecutions involves a value judgment, it does not mean that the decision amounted to a purely subjective determination by the president. The decision had to be made rationally.

To produce a rational decision the president had to engage in a process in which all the factors relevant to the decision-making process were considered. If the decision was challenged on grounds of rationality, the court would consider whether the failure to so consider certain material was rationally connected to the purpose for which the power had been conferred. If the answer was in the negative, the court would enquire whether ignoring the relevant material coloured the entire decision-making process so that the ultimate decision was irrational.

In the case of Simelane, the court found that the findings of the Ginwala commission on the conduct of Simelane, then the director general of the department of justice, "represented brightly flashing red lights warning of impending danger to any person involved in the process of Mr Simelane's appointment".

Those red lights should have been glaring to anyone who had bothered to read the executive summary of the Ginwala report.

But the court went further. It examined the evidence in the report that constituted the most serious allegations of dishonesty and/or conscientiousness on Simelane's part.

On the basis of this, the court said: "The president, too, should have been alerted by the adverse findings of the Ginwala commission against Mr Simelane and ought to have initiated a further investigation for the purpose of determining whether real and important questions had been raised about [his] honesty and conscientiousness."

Clash
The failure to do this meant there was no rational relationship between the power given to the president to appoint a national director of public prosecutions and his ignoring of the Ginwala findings.

To those who argue about separation of powers, the court held that there is no clash between that doctrine and the requirement that executive decisions be taken rationally. An irrational decision is an illegal one and illegality cannot be justified on the basis of separation of powers.

In so holding, the court was careful to observe that a test for rationality involves judicial restraint and hence noninterference with the merits of policy adopted by the government. It is probably for this reason that the court held that its decision did not necessarily mean Simelane could not be appointed, but he would be required to provide a clear and proper explanation to persuade the president that he was, after all, a fit and proper person. It was the failure of the president to deal with these serious allegations that made his decision an irrational one.

Although it is highly likely that Simelane is not holding his breath until the moment he is reconsidered for the position, the president will hopefully read the following passage from the judgment before making a new appointment: "The office [of the national director] must be non-political and nonpartisan and is closely related to the function of the judiciary broadly to achieve justice."

Failure to follow this injunction is to ignore that this office, in the words of the court, is "fundamental to democracy".

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