Justice Minister Jeff Radebe has disregarded the recommendation of the Public Service Commission (PSC) that Menzi Simelane should face a disciplinary hearing over his conduct at the Ginwala inquiry — this because the PSC did not give Simelane a chance to put his side of the case to it.
The Ginwala inquiry was set up to probe former prosecutions boss Vusi Pikoli’s fitness for office.
”Any person who is to be affected by a finding must be given the opportunity to defend himself, as dictated by the audi alterem partem rule,” Radebe said
As a result, the PSC recommendation was fatally flawed, and he felt able to disregard it. That accordingly leaves Simelane without taint, and Radebe insisted at a press conference on Monday that he is a fit and proper person to hold the office of national director of public prosecutions. (NDPP)
The justice minister also went through the allegations made against the new NDPP, who takes office on Tuesday, and dismissed each of them in turn.
The first allegation was that Simelane did not disclose to the inquiry a letter to Pikoli — whom Ginwala found to be a fit and proper person to hold the office of NDPP — sent by then-justice minister Brigitte Mabandla instructing him not to proceed with the arrest and prosecution of former police chief Jackie Selebi.
However, Radebe found that the letter was in fact forwarded to the commission by Mabandla herself, and was part of the bundle of papers sent to Ginwala.
”The attack on the credibility of advocate Simelane by the Ginwala inquiry because he had allegedly not disclosed this letter to the inquiry and therefore made a misrepresentation to the inquiry is without any foundation,” Radebe said.
Simelane was also accused of misleading the inquiry by denying that he had acquired a legal opinion regarding the Pikoli issue. Radebe pointed out, however, that Simelane later corrected his evidence, explaining that the opinion covered this in addition to a variety of other issues. ”Such a correction does not necessarily justify a conclusion that a witness was lying,” Radebe said.
On a number of issues – especially surrounding the letter to Pikoli – Radebe said that Ginwala ought to have called Mabandla herself to give evidence to the commission.
”The Ginwala inquiry in investigating the irretrievable breakdown in the relationship between the minister and the NDPP should have called the minister to give evidence,” he said.
Complaints
Meanwhile, a senior advocate submitted a complaint to the Pretoria Bar Council against Simelane on Monday, South African Broadcasting Corporation radio news reported.
”I ask the Pretoria Bar Council to consider the ethical or unethical conduct complained of and to decide what should be done about it,” said Pat Ellis, chairperson of the ethics committee.
”The complaints are extremely serious on the following basis: it is considered serious misconduct on the part of any advocate to mislead a court or tribunal in front of which she or he appears.”
President Jacob Zuma last week appointed Simelane in the new position, drawing widespread criticism from political and legal circles.
The complaint against Simelane centres around the finding by former National Assembly speaker Frene Ginwala last year during an inquiry into whether Pikoli was fit to hold office. Simelane testified at that hearing and Ginwala found he had most likely interfered in the independence of the NPA. This was during the fraud and corruption investigation against former police commissioner Jackie Selebi.
The Star reported on Monday that the General Council of the Bar of South Africa confirmed it was ready to appoint a panel of advocates to probe a complaint against Simelane.
Advocate Patric Mtshaulana, chairperson of the bar, also said the complaint was based on Ginwala’s findings. — I-Net Bridge, Sapa