The Democratic Alliance (DA) has formally applied to the Constitutional Court to hear the party’s bid to overturn President Jacob Zuma’s appointment of advocate Menzi Simelane as National Director of Public Prosecutions (NDPP).
The DA application to have the appointment declared invalid was rejected by acting South Gauteng High Court Judge Piet van der Byl in November last year.
Van der Byl conceded that he was “not persuaded” that Simelane was “not a controversial person and one with an unblemished background or that he is one of the most experienced persons who could have been taken into consideration for the appointment”.
Nevertheless, he could not find that Simelane was not a “fit and proper” person as required by the National Prosecution Authority Act, or that Zuma did not properly apply his mind to the decision.
The judgment has been criticised as weak and poorly motivated.
Questions have also been raised by senior members of the legal fraternity about why an acting judge was nominated to consider such a sensitive case.
The DA has lodged a parallel application for leave to appeal at the South Gauteng High Court, but told the Constitutional Court that it was in the interests of justice for the highest court to consider the appeal directly, rather than via the usual route of the Supreme Court of Appeal.
‘Fear, favour or prejudice’
The party says the issues are squarely constitutional and will end up at the Constitutional Court anyway. The DA contends that it is in the public interest that the constitutionality of Simelane’s appointment should be considered as soon as possible, as he should not continue in such a sensitive position for a long period if his appointment is unlawful.
The DA argues, first, that the NPA Act requires that the person entrusted with the office of NDPP must be “fit and proper” in terms of “experience, conscientiousness and integrity”. A person’s fitness must also take account of whether he or she will fulfil the duties of the office independently and without “fear, favour or prejudice”. The DA submits that Simelane does not meet these requirements.
Second, the DA holds that the process followed by Zuma in appointing Simelane was not rationally related to the objectives of the Constitution and the NPA.
Third, it argues that Zuma’s decision was made not for the purposes set out in the Constitution and the NPA Act, but “for the ulterior purpose of attempting to ensure that the new NDPP would be malleable to the executives wishes”.
The DA lists a variety of Simelane’s alleged shortcomings, including what it calls his “incorrect, misleading and untruthful evidence” before the inquiry chaired by Frene Ginwala into the fitness of the previous NDPP, Vusi Pikoli, to hold that office.
The party also notes: “Generally speaking, Mr Simelane’s CV indicated that he had no experience in the prosecution of crime and nothing out of the ordinary by way of tertiary qualifications. His previous performance was equivocal at best.”
The party argues that Ginwala’s findings against Simelane were highly relevant to Zuma’s decision, but “do not appear to have been considered by the President at all”.
Government has given notice of its intention to oppose both applications.