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11 Dec 2009 12:21
The Democratic Alliance filed urgent papers in the High Court in Pretoria on Friday opposing the appointment of Menzi Simelane as the national director of public prosecutions.
Speaking outside the court, DA leader Helen Zille said: “We believe advocate Simelane is not a fit and proper person. He does not believe in the independence of the judiciary.
It will merely become an extension of the ANC”.
In a founding affidavit, DA chairperson James Selfe said the party was challenging Simelane’s appointment as it was an objective jurisdictional requirement that he be a “fit and proper person” and have “experience, conscientiousness and integrity”.
The party was also challenging President Jacob Zuma’s decision to appoint a new national director of public prosecutions as an executive, rather than administrative action.
“It was unlawful, irrational, arbitrary, biased, based on an ulterior motive and inconsistent with the Constitution,” said Selfe.
The basis of the party’s argument against Simelane was that he gave “misleading and untruthful” evidence before the Ginwala inquiry established to ascertain the fitness to hold office of his predecessor Vusi Pikoli.
Although Ginwala said she could not support the contention that Pikoli was unfit to hold office, she expressed concern about his understanding of matters of national security.
This was cited by the then president Kgalema Motlanthe—who is now deputy president—as a reason to recommend to Parliament that Pikoli be dismissed.
However, Ginwala’s report was also critical of Simelane, finding that his conduct as the then-justice department director general was “irregular” and that his testimony was “contradictory and without basis in fact or in law”.
The report also referred to a letter drafted by Simelane to Pikoli instructing him to stop investigating former police national commissioner Jackie Selebi.
Ginwala said assuming this was correct, the contents of the letter were “tantamount to executive interference with the prosecutorial independence of the National Prosecuting Authority” and that Simelane’s conduct was “reckless, to say the least”.
Zille said it was a “damning contradiction” that the inquiry was used to support Pikoli’s axing, but that its findings had been ignored when appointing Simelane.
“The irony is that Vusi Pikoli was fired, but found [by the inquiry] to be a fit and proper person.
In his affidavit Selfe said: “Mr Simelane lacks integrity in the sense that he displays no sign of strong moral principles, or the character of uncorrupted virtue, uprightness, honesty and integrity.
“If left unchallenged, the appointment of Simelane will weaken the institutional independence and integrity of the prosecution services.”
The DA also submitted that Zuma’s decision was not reasonable or rational and did not take into account the serious allegations against Simelane, both in the public domain and in the inquiry’s findings.
“The president can reasonably be suspected of bias and having taken the decision for an ulterior purpose ... It is no secret that the president himself and other members of the ruling alliance have found themselves on the wrong side of the prosecution services.
“In these circumstances it is submitted that the inescapable conclusion is that government seeks to tame and control the NPA.”
The matter will be heard in April. - Sapa
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