SCA: Simelane's appointment as NPA boss 'invalid'

The Supreme Court of Appeal has ruled that Menzi Simelane’s appointment by President Jacob Zuma as the director of public prosecutions at the National Prosecuting Authority (NPA), was invalid.

The case was brought to the appeals court by the Democratic Alliance, after its bid to have Zuma’s decision to appoint Simelane as the NPA boss set aside failed in the North Gauteng High Court in Pretoria last year.

  • Read the full judgment here.
On Thursday morning, Judge Mahomed Navsa ruled that Simelane’s appointment was “inconsistent with the Constitution and invalid”.

The judgment set aside the findings of the North Gauteng High Court, and ordered the president, Justice Minister Jeff Radebe and Simelane to pay the DA’s costs.

In its application, the DA argued that Zuma “acted outside of his powers by appointing a person who is not fit and proper to hold the office of national director of public prosecutions”.

Justice ministry spokesperson Tlali Tlali said the ruling would be challenged in the Constitutional Court.

“Naturally, we are disappointed but respect the court’s judgment in this matter,” said Tlali on Thursday.

“We will study the judgment in order to understand its implications as it unfolds further. The court’s order must be referred to the Constitutional Court for confirmation as provided for in terms of section 172(2) of the Constitution.
A final determination has yet to be made as to what our legal attitude to this matter at the Constitutional Court will be.”

The DA’s Dene Smuts told the Mail and Guardian on Thursday: “We are very delighted by the judgment. We had major problems with his appointment. We did not think he was fit and proper for the position. We felt it was cadre deployment and are now looking forward to the president putting someone in the position who is fit and proper for the job.”

‘Misleading and untruthful evidence’
The foundation of the DA’s case against Simelane was the “misleading and untruthful evidence” he gave during the 2008 Ginwala Inquiry, when he was the director general in the department of justice and constitutional development.

The inquiry looked at the fitness for office of Simelane’s predecessor, Vusi Pikoli.

Ginwala severely criticised Simelane in her final report, calling him arrogant and condescending towards Pikoli.

Ginwala labelled his evidence before the inquiry “contradictory and without basis in fact or in law” and blamed him for suppressing the disclosure of information. This specifically referred to a legal opinion advising Simelane that he did not have authority over the NPA, as he had claimed.

Simelane’s conduct was “irregular” and Ginwala even suggested he might have contravened the NPA Act by drafting a letter to Pikoli that instructed him to abort the imminent arrest of former police boss Jackie Selebi.

No disciplinary proceedings
Although a formal inquiry was set up to inquire into Simelane’s conduct before Ginwala in February 2009, Justice Minister Jeff Radebe declined to take disciplinary proceedings against him. Instead he was appointed as deputy national director of prosecutions.

The DA argued that Zuma made Simelane’s appointment based solely on his CV, without taking into account his questionable behaviour during the enquiry.

Navsa found that Zuma was remiss in not taking the time to consider all the facts about Simelane, saying in his judgment: “I accept that the president must have a multitude of daily duties and is a very busy man. However when he is dealing with an office as important as that of the national director of public prosecutions, which is integral to the rule of law and to our success as a democracy, then time should be taken to get it right.”

He went on to say: “On the available evidence the president could in any event not have reached a conclusion favourable to Mr Simelane, as there were too many unresolved questions concerning his integrity and experience.”

The judgment was careful to prove precedent for judicial scrutiny of the president’s appointment of a public prosecutor.

In recent months, Zuma and other members of the executive have made several statements taking issue with an “unelected” judiciary passing judgment on executive decisions.

During a farewell to former chief justice Sandile Ngcobo earlier this year, Zuma said: “We must not get a sense that there are those who wish to co-govern the country through the courts, when they have not won the popular vote during elections.”

He added that the powers conferred on the courts could not be regarded as superior to the powers resulting from a mandate given by the people in a popular vote.

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