Simelane's suspect judgement
Controversial new prosecutions boss Menzi Simelane’s questionable past in the Justice Department continues to haunt him. The Mail & Guardian has uncovered evidence that, as director general of justice, he created a unit in the department, the legality of which is in doubt, and appointed to head it a judge whose timely resignation from the Bench saw him escape possible impeachment on charges of gross misconduct.
The M&G has established that former North Gauteng High Court judge Ismail Hussain has not been readmitted to the Bar because he has not provided any formal refutation of charges that he misused funds held in a trust account on behalf of his clients in an arbitration case.
Senior justice officials told the M&G that in August 2007 Simelane asked Hussain to form and head an in-house “civil litigation unit”. The M&G understands that the department spends about R150-million annually on salaries alone for the unit—but the General Council of the Bar (GCB) has complained to the Justice Ministry about the unit and some state attorneys dismiss it as ineffective.
Now the head of the National Prosecuting Authority (NPA), Simelane, as director general of justice, approved a memo dated December 13 2007, which the M&G has seen, justifying the creation of an in-house “civil litigation unit” to be staffed by “45 state counsel”.
The unit would “save the state huge sums of money by engaging private counsel to represent government in civil litigation”, the memo read.
Simelane approved the memo in December, about five months after he apparently asked Hussain to form and head the unit and two months after the former judge commenced his duties there, in October 2007.
This week Hussain confirmed that he was approached by Simelane, but denied any involvement in the decision to form the unit: that was “long before”, he told the M&G.
In February this year GCB chairperson Patric Mtshaulana wrote to former justice minister Enver Surty, saying the unit’s existence “may be unlawful or contrary to accepted norms of the profession”.
“Presently it is [an] accepted norm that BP or Shell may not employ the services of an advocate employed by them to represent them in court — it is still accepted that the employment relationship stands in the way of the advocate being able to act independently and to deal with the matter as an advocate or attorney should,” Mtshaulana wrote.
One state attorney complained in internal correspondence, which the M&G has seen, that most of the “in-house counsel are not experienced enough and can be used only in limited instances”. He said that they were “slow in performance of any task, but can give correct opinions in fairly simple matters”.
But “the moment a matter is out of the ordinary, they are in trouble”, wrote the attorney, who echoed Mtshaulana’s concerns about the independence of the unit’s counsel.
The attorney also questioned the legal propriety of the unit, writing that “there is no legal framework for [its] existence — we are not aware of any policy framework justifying [Simelane’s] decision [to create the unit]”.
Correspondence in possession of the M&G shows that Hussain wrote to Mtshaulana, and recently to Minister of Justice Jeff Radebe, to “give insight into the unit”. This week Hussain shot back at Mtshaulana on the independence of the in-house counsel.
“I indicated that members of the unit acted, at all times, with professional independence expected of all practising advocates — we are first and foremost officers of the court,” he told the M&G.
Mtshaulana said this week that Hussain has not been readmitted to the Bar after he failed to disclose what happened in his previous role as a judge. “One of the things you have to do before getting readmitted is that you have to tell us what happened,” said Mtshaulana, adding that Hussain was apparently uninterested in explaining himself to the Bar.
Simelane appointed Hussain barely a year after the Judicial Service Commission (JSC) charged him with gross misconduct, alleging he had misused funds held in a trust account on behalf of his clients in an arbitration case.
He resigned as a judge before a hearing on his possible impeachment, saying at the time that this had nothing to do with the JSC charges but that in the interests of the integrity of the judiciary he had been urged not to challenge the JSC.
According to documentation in the M&G‘s possession, the former judge initially charged the justice department an hourly rate of more than R800, which increased to more than R900 a year later. At this rate he would have been earning R2-million a year—but this week he denied ever being paid an hourly rate.
“I understood that this was a temporary appointment and my contract was subject to renewal on performance,” he told the M&G.
Simelane personally renewed Hussain’s contract until next March and authorised that he be paid more than R1,5-million via a labour-broking firm, according to documents the M&G has seen.
“The amount that I am being paid is modest,” Hussain told the M&G, “considering that it includes provision for transport, pension and medical aid ... It is certainly considerably less than what a silk of more than 10 years’ experience earns at the Bar.”
Responding to M&G questions addressed to Simelane, NPA spokesperson Mthunzi Mhaga said the unit had been created “at the request of” Simelane “as part of a strategy to increase state capacity, particularly among black attorneys, and to reduce government’s dependence on the private sector. It is significant to mention that the unit is still in its infancy and should be given time to develop. Its creation is also about transformation of the advocates’ profession.”
Meanwhile, NPA spokesperson Bulelwa Makeke has defended Simelane’s appointment, saying it will bring much-needed certainty to the NPA.
In a statement sent to some media this week Makeke said Simelane has a vision of “a prosecutions service that is able to focus on the core of general prosecutions, while also building the capacity to specialise in priority crime areas”.
Simelane has proposed moving some “office-based” senior prosecutors, based at the NPA’s Silverton headquarters, into the country’s courts, she wrote, and this will “increase the organisation’s capacity to prosecute complex cases”.
“He also has a deep commitment to ensuring organisational transformation and employment equity in line with government’s priorities,” she wrote. “I expect that he will make some revolutionary decisions on this front. Watch this space, give him an opportunity to lead the NPA and judge him — on the basis of his performance and conduct in that role.”