Menzi Simelane may have effectively defeated the Democratic Alliance’s challenge to have him removed from office.
At the very least, he won the first round. But acting Judge Piet van der Byl hardly seemed persuaded about the care that the president took in making this vital appointment.
It was surprising in that Simelane’s previous record could never have been the justification for a rational decision to elevate him to so crucial a national office.
The Supreme Court of Appeal has recently observed, in the case dealing with the alleged cartel in the dairy industry, that when he was competition commissioner Simelane botched a critical investigation into alleged cartel activity concerning staple foods. He scored an own goal against the poor!
His record as director general of the justice department was equally problematic. Nonetheless, the public is asked to believe that this inexperienced practitioner, with hardly any previous serious litigation experience or court time, a demonstrably poor record in his two previous positions and with serious questions from the Ginwala Commission hanging over his judgment, was the best candidate available to head the national prosecution service.
The public seems less persuaded than President Jacob Zuma. The ANC Youth League reacted to the prosecution of Northern Cape ANC leader John Block by calling Simelane “a rented dog”.
Without in anyway approving of the “elegant” manner in which the youth league conducts its public critique of those who do not do its bidding, once a questionable appointment is made to so key a role, the motives of the appointee will invariably be open to attack and, in turn, the office of National Director of Public Prosecutions will then no longer be seen as politically neutral.
Whatever the motive of the youth league, other voices from very different parts of the political terrain have mused in different tones but using similar inferences about political motivation in the appointment of Simelane.
It is thus hardly surprising that this ill-suited appointee should do a passable impersonation of a prosecutorial blunderbuss in the NDPP’s decision to charge the Jules High School children with statutory rape. The crime of statutory rape concerns the act of sexual penetration of a child between 12 and 16.
It has been on the statute book for a long time. But, in 2007, the law was changed so that both the person who committed the act and the child must be charged. Where, as in this case, both parties are children, the national director must authorise their prosecution.
Judgment
Enter Simelane. Although the facts of the case remain somewhat unclear, it appears that the NDPP decided to press charges against the schoolgirl, who initially claimed to have been raped by two fellow pupils, after viewing the video footage of the sexual encounter and deciding that it demonstrated some form of consent on her part.
Mercifully, the presiding magistrate showed far better judgment and decided that it was in the children’s best interests to deal with the matter through a diversion programme rather than in the criminal justice system. But the decision to charge in the first place raises profoundly disquieting questions about this exercise of discretion by the leadership of the NDPP.
It would be interesting to establish how Simelane divined that the girl had consented. If the girl felt compelled to withdraw her claim that she had been raped, this would sadly reflect the pressure that is exerted, all too often, on victims “not to make trouble”.
If she did, in truth, consent, then the potentially destructive discourse in the form of a moral panic about the state of our children was exacerbated by the decision to prosecute.
In turn, this will only increase the anxiety of victims about reporting sexual crimes; and this in a country with a notoriously low rate of reporting of rape. The NDPP decision guaranteed that the public discourse shifted to blaming the young girl.
Even Simelane should know that the criminal justice system is not the ideal model to deal with the sexual engagement of children. Where the NDPP should have been concerned but, disgracefully, was not, was in the manner in which the footage of the sexual encounter was widely distributed.
It amounts to a sacrifice of rights of privacy, dignity and security of vulnerable children at the altar of voyeurism. For the NDPP to use the footage for the purpose of prosecution and to do nothing about its widespread distribution thereof is a monumental blight on its reputation.
Questioning motives
One can only speculate about the motives of a national director who is so keen to close down politically sensitive inquiries such as those involving the prosecution of Fana Hlongwane for arms-deal corruption and then personally authorises this ill-advised prosecution.
Could it be that Simelane was trying to buy brownie points from the so-called moral majority to bolster his almost nonexistent reputation as an effective prosecutor?
What is far less uncertain is that, whatever the result of the DA’s appeal, the existence of a competent prosecution service and Simelane’s continuation as its head are mutually exclusive. The ill-advised exploitation of adolescent sex should silence the few who continue to defend this disastrous appointment.