Casac: Zuma failed in his constitutional obligation

President Jacob Zuma. (Reuters)

President Jacob Zuma. (Reuters)

The Council for the Advancement of the South African Constitution (Casac) has filed papers in the Constitutional Court, asking it to declare that President Jacob Zuma has failed in his constitutional obligation to appoint a prosecutions chief "diligently and without delay".

The council, which attempts to advance the Constitution as a platform for democracy, has requested that its application be heard urgently. 

Lawyers for the respondents in the case, Zuma, the Minister of Justice Jeff Radebe and current acting national director of public prosecutions advocate Nomgcobo Jiba have already indicated they will oppose the application.

In an affidavit by the executive secretary of the council Parmananda Naidoo, the Constitutional Court was asked to direct Zuma to appoint a prosecutions chief within a month of an order being made by the court.

"The president has, for more than nearly nine months, failed to fulfil his constitutional obligations under section 179 of the Constitution to appoint a national director of public prosecutions," Naidoo claims.

"This failure is inexcusable and contrary to the requirements of the Constitution; in section 237 of the Constitution, that all constitutional obligations must be performed diligently and without delay."

The president's continued failure to take action has "serious and ongoing consequences" for the country because it undermines the independence of the head of the National Prosecuting Authority, which the council pointed out is required by the Constitution.

The Legal Resources Centre is representing the council in this contentious matter, which also revolves around Zuma's previous dubious appointments to this post.

Simelane was not 'fit and proper'
Jiba was brought in after Menzi Simelane was summarily axed from his post as national director of public prosecutions when the Constitutional Court confirmed a Supreme Court of Apeal ruling that Zuma's decision to appoint him to the post was invalid. The Democratic Alliance had contended in its court papers that Simelane was not "fit and proper" for the job because he lacked integrity and did not respect the institutional independence of the National Prosecuting Authority.

However, Jiba has a controversial past of her own as she was previously suspended from the NPA more than four years ago by its then head Mokotedi Mpshe.

It was widely reported at the time that she faced internal charges of misconduct and bringing the NPA into disrepute. The charges were based on her alleged involvement in a campaign against former Gauteng Scorpions boss Gerrie Nel, aimed at thwarting the arrest of former police national commissioner Jackie Selebi.

While Jiba never went through an internal disciplinary process, the charges against her were dropped following a settlement apparently reached during her ongoing labour dispute.

The Mail & Guardian previously reported that a former NPA colleague, advocate Vernon Nemaorani, stated in his Labour Court affidavit that Jiba blamed Nel for the investigation and conviction of her lawyer husband on charges that he had dipped into the trust fund of a firm of attorneys.

In legal circles, it is believed that Jiba's chequered past might be the reason why Zuma has not appointed her permanently to the post.

Drop charges against Zuma
In his affidavit, Naidoo points out that Jiba plays a large role in an ongoing dispute following a ruling by the Supreme Court of Appeal that the DA is entitled to review the National Prosecuting Authority's decision to drop corruption charges against Zuma.

"The acting national director of public prosecutions has an obligation to hand over various tapes that allegedly formed the basis for the withdrawal decision," said Naidoo.

While Jiba still has to hand over the secret spy tapes to the DA, it appears this Constitutional Court case could also be one to watch.

Glynnis Underhill

Glynnis Underhill

Glynnis Underhill has been in journalism for more years than she cares to remember. She loves a good story as much now as she did when she first started. The only difference is today she hopes she is giving something back to the country. Read more from Glynnis Underhill


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