President Jacob Zuma and Justice Minister Jeff Radebe overlooked the criticism that national director of public prosecutions Menzi Simelane received in the findings of the Ginwala inquiry when appointing him to his position, the Constitutional Court heard on Tuesday.
“Based on their knowledge of Mr Simelane’s experience, conscientiousness and integrity they found him to be the suitable candidate,” advocate Marumo Moerane SC told the court.
South Africa’s highest court is currently reviewing the Supreme Court of Appeal (SCA) ruling in December last year that President Jacob Zuma’s appointment of Simelane as NPA boss was “inconsistent with the Constitution and invalid” as he did not apply his mind in the decision.
Simelane, who Zuma placed on paid leave after the SCA decision, was appointed NPA boss in 2009 after the 2008 Ginwala inquiry severely criticised him.
The inquiry, which investigated the fitness of former NPA head Vusi Pikoli’s for office, labelled Simelane’s evidence before the inquiry as “contradictory and without basis in fact or in law” and blamed him for suppressing a disclosure of information.
Ginwala even suggested Simelane, then director general in the department of justice might have contravened the NPA Act by drafting a letter to Pikoli that instructed him to abort the imminent arrest of disgraced former police boss Jackie Selebi.
In at times stuttered representation, Moerane said any potential negative findings in the Ginwala report attributed to Simelane, were “outweighed by the positives”.
Moreane’s representation seemed ill-received by the full sitting bench of the court.
Chief justice Mogoeng Mogoeng demanded to know whether the Ginwala findings regarding Simelane’s relationship with the truth do “impacted his appointment”.
Justice Johan Froneman also laid into Moerane, asking him to explain why Zuma and Radebe appointed an individual accused of not being independent and lacking integrity.
“Accepting a verdict doesn’t mean you agree with all findings,” Moerane responded.
“The crux is that we’re not dealing with a judicial enquiry, but an enquiry by a politician, where the normal rules don’t apply. The findings of the Ginwala commission can’t be taken as gospel.”
Moerane argued that it was Zuma’s prerogative to appoint an individual he determined to be fit and proper to head the NPA.
“It is the president’s power to appoint someone he sees as fit. The Constitution grants him that power. Jack and Jill or the DA can disagree with that decision but it’s the president’s power to appoint,” he said.
Moerane’s stance was bolstered by similar representations from Simelane’s lawyer, advocate David Unterhalter SC.
Unterhalter said electing an NPA is “a weighing exercise” within the powers enjoyed by president.
“The Constitution gives the president the power to engage that exercise and reach the judgments that are required for that purpose,” he said.
Unterhalter also argued Simelane could not be held responsible for the letter drafted to Pikoli, urging him to cease with the Selebi prosecution, as he was acting on behalf of former justice minister Brigitte Mabandla.
“The submission that was made and appears in the papers, is the submission of the minister,” he said.
Unterhalter also warned that if the SCA ruling is upheld, “major litigation” could be brought by those affected by Simelane’s decisions, resulting in major decisions being overturned.
“There should be a setting aside of the order so that the president can do what is necessary,” Unterhalter said.
Owen Rogers, legal counsel for the DA — who asked the court to confirm the SCA order — argued that Simelane’s selection was “inexplicable and irrational” and that Zuma didn’t follow a rational process in appointing him.
“Zuma had a firm view Simelane would head NPA, despite evidence that he could face disciplinary inquiry emanating from Ginwala report,” he said.
Rogers argued that any appointment to head the NPA can’t be based on anecdotal info gained “over a cup of tea”.
“The Constitution requires that executive powers are executed with a sober mind and rationality. The president is obligated to consider whether Simelane was a fit and proper candidate. It is not enough to prove after the fact that the person selected was fit and proper,” he said.
Rogers said Zuma had specifically appointed Simelane as he wanted a “malleable” person in that position.
The court was adjourned with judgment reserved until a later date.