The case against Simelane

The General Council of the Bar (GCB) is investigating 17 complaints against newly appointed prosecutions boss Menzi Simelane, including allegations published in the Mail & Guardian a year ago.

The M&G is in possession of senior advocate Pat Ellis’s memorandum submitted to the Pretoria Bar this week. Attached to it is a confidential memorandum detailing complaints against Simelane emanating from the Ginwala inquiry, the Constitutional Court and M&G reports.

Click here to read the memorandum

The GCB launched its own probe into Simelane’s fitness as an advocate this week and appointed three senior counsel from Johannesburg — Azar Bham, Modise Khoza and Gerrit Pretorius — to investigate Ellis’s complaints.

At the same time Justice Minister Jeff Radebe defended Simelane’s appointment and slammed Ginwala and the Public Service Commission (PSC), which found Simelane should have faced a disciplinary hearing.

Ellis told the M&G this week that he had submitted a complaint to the GCB in September this year, similar to the one he tabled at the Pretoria Bar this week. In light of the GCB’s decision to launch a probe the Pretoria Bar decided this week not to institute its own investigation.

In another development a group of prosecutors at the National Prosecuting Authority’s Pretoria office released a statement on Wednesday in support of Simelane’s appointment. They accuse “anti-transformation dark forces within the NPA” of being behind Ellis’s complaint and say the GCB’s probe “has nothing to do with the rule of law”.

According to the Ellis memorandum, he received a report on Simelane’s conduct from a source “which I am not at liberty to disclose”.

“I subsequently compared that report with the report of the Ginwala Commission and found it to be accurate in all material aspects. I then took the matter up with [Gerrit] Pretorius SC who I knew to have been a member of the GCB Exco — he was, like me, outraged at the contents thereof.”

Despite the fact that an anonymous source supplied the confidential memorandum detailing the complaints against Simelane, Ellis — in his “personal capacity” — reported Simelane’s alleged misconduct to the Bar.

Ellis writes that he has deposed to a number of affidavits in striking off applications in the past two years and should the claims against Simelane not be investigated, “it will no doubt create the impression the Bar Council is selective in meting out discipline”.

The confidential memorandum tables 14 complaints against Simelane, flowing from the Ginwala report. They include:

  • Simelane had a misconception of his authority over the NPA
  • ;

  • His testimony before the inquiry was “contradictory and without basis in fact or in law”
  • ;

  • Several of Simelane’s allegations against his predecessor, Vusi Pikoli were “baseless”; and
  • Simelane “deliberately withheld” from Pikoli and the inquiry a legal opinion of his powers over the NPA.

The memorandum further cites the Constitutional Court’s case of businessman Bob Glenister, who tried to save the Scorpions.

Judges Zak Yacoob and Kate O’Regan slammed Simelane for “taking technical points” in his affidavit opposing Glenister’s application. Simelane denied in his affidavit, signed on April 29 last year, that a decision had been taken by Cabinet to dissolve the Scorpions.

The next day the Cabinet approved the two Bills disbanding the unit.

The memorandum quotes an M&G report alleging that a state advocate in the NPA was asked by Simelane to “spy” on Pikoli. The report also detailed a private briefing given by Simelane, who was justice boss at the time, to the ANC in KwaZulu-Natal on why the Scorpions should go.

The GCB’s three-man team will now have to decide whether there are grounds to apply to a high court for Simelane to be disbarred.

Constitutional law academic Pierre de Vos told the M&G Radebe had been disingenuous in the approach he took to clear Simelane.

He dismissed suggestions by Simelane’s legal team that the Ginwala inquiry was not “a public institution”.

“They are confusing form with substance,” said De Vos, arguing that Ginwala had performed a public function as determined by legislation. He said that the PSC’s role was to investigate whether there was a case for Simelane to answer.

There was no need, therefore, added De Vos, for the PSC to hear submissions from Simelane, as its role was merely to ascertain whether any conduct expected of public servants had been breached.

Radebe told journalists on Monday that the PSC had violated Simelane’s rights by not affording him an ­opportunity to put his side forward.

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