Justice Minister Jeff Radebe is in the firing line after President Jacob Zuma’s lawyer revealed in court this week that Radebe had placed very little information before Zuma when the president appointed Menzi Simelane as head of the National Prosecuting Authority.
This could lead to Zuma’s appointment of Simelane being declared invalid if the court accepts that a rational process wasn’t followed in appointing the controversial former justice director general to head the NPA.
“The president relied on a very senior minister [Radebe] who said this [Simelane] is a man of integrity. He did not interrogate the minister. He accepted it,” advocate Nazeer Cassim SC, appearing for Zuma, told the North Gauteng High Court this week.
Cassim defended Zuma’s appointment of Simelane on the limited ground of Zuma’s “value judgement”, against mounting evidence by the Democratic Alliance that Zuma wasn’t fully briefed on Simelane’s track record and negative findings against him before appointing him in November last year.
The DA is challenging Simelane’s appointment as prosecutions boss on the grounds that a rational process wasn’t followed in appointing him, that Simelane is not a fit and proper person to head the NPA and that Zuma and Radebe had an ulterior purpose in appointing him.
After three days of argument, legal experts attending the case said the DA’s argument that a rational process wasn’t followed when Zuma appointed Simelane was the party’s strongest point. Judge Piet van der Byl has reserved judgement.
Senior advocate Owen Rogers, appearing for the DA, revealed in court that Zuma was not in possession of the following information before he appointed Simelane:
- A report by the Public Service Commission (PSC) recommending that Radebe institute a disciplinary hearing against Simelane based on the findings of the Ginwala inquiry;
- Consecutive qualified audits received by the justice department from the auditor general while Simelane was director general;
- A judgement by the Supreme Court of Appeal in a case brought by Pretoria Portland Cement against the Competition Commission while Simelane headed the commission. The judgement found Simelane had used deception in gaining access to PPC’s premises and was “scathing” about the commission’s abuse of power; and
- Criticism by the Constitutional Court of Simelane’s actions in the case brought by businessman Hugh Glenister to save the Scorpions. Judges Kate O’Regan and Zac Yacoob criticised Simelane for not responding “fully, frankly and openly”.
This wasn’t challenged by Cassim, who turned his attention to Radebe and said Zuma didn’t “second-guess” the minister.
Cassim argued that the test for “fit and proper” was subjective and that Zuma accepted Simelane’s fitness to hold office based on his personal value system, which he juxtaposed with the DA’s “liberal tradition”.
“Someone raised in a liberal tradition has a very different value system from someone who came into power in a socialist structure. The court will not impose a value system as if it is a universal criteri[on],” said Cassim.
He argued it was “very difficult to find someone who would suit the ANC profile with 30 years of prosecuting experience”. Radebe, a “very senior minister”, told Zuma that in his judgement “Simelane is a good man” and Zuma believed him.
Van der Byl pushed counsel on what process Zuma followed in appointing Simelane and whether the president had access to all relevant information to make a rational and legal appointment.
In response to a statement by advocate Marumo Moerane SC, appearing for Radebe, that Zuma was “fully briefed”, Van der Byl asked: “How full?” Moerane replied: “The minister [Radebe] says he briefed the president fully.”
Rogers slammed Radebe for “brushing off” the PSC report and its recommendation that Simelane should face a disciplinary hearing.
Former justice minister Enver Surty referred the Ginwala inquiry’s report to the PSC, which considered the report and recommended that Simelane face a disciplinary hearing.
In his affidavit before court Radebe admits that he unilaterally decided not to charge Simelane because the PSC had not considered submissions made by Simelane’s advocates.
Motivating why he did not present the PSC report to Zuma, Radebe states: “I did not consider it legally defensible for me to take the recommendations of the PSC to the president, knowing that Simelane’s views had not been taken into account.”
Radebe also claims he “was not legally obligated to furnish the president with any documentation that I had recourse to as I informed myself of the qualities of Simelane, nor was the president obliged to request such documentation from me”.
The DA slams Radebe for “blindly” accepting Simelane’s version and for withholding from Zuma the PSC’s report about Ginwala’s findings.
After Simelane’s appointment, and after the DA had launched its application, Zuma read extracts from the Ginwala inquiry’s transcript and report. He states under oath: “I submit that in view of, at times, the speculative nature of the enquiry’s findings in this regard, and the absence of a finding of malice or dishonesty by the enquiry, I considered the report in the light of the knowledge I have of Adv Simelane … and found that these findings did not detract from his suitability for appointment.”
Rogers, for the DA, argued Simelane’s appointment as national director of public prosecutions was a done deal, regardless of the PSC’s findings.
Although Zuma states in his affidavit that he supported Radebe’s handling of the PSC report, Cassim told the court he would not argue that Radebe’s disregard of the PSC’s recommendation was correct.
“I agree with Mr Rogers [that] the PSC said give him [Simelane] a hearing. But the minister of justice took a decision it was not necessary to give him a hearing. Even if he was wrong, the decision [by Radebe] is not the subject matter of this review.”
This article was produced by amaBhungane, investigators of the M&G Centre for Investigative Journalism, a non-profit initiative to enhance capacity for investigative journalism in the public interest. www.amabhungane.co.za.