Menzi Simelane testified in a disciplinary hearing by the Johannesburg Bar into charges of misconduct instituted against him, that his job at the time of the Ginwala inquiry, when he was the justice department director general, was to supervise the legal team that represented the department and the presidency at the inquiry.
“The [justice] minister determined what goes into the submission. The legal teams were the ones determining how the inquiry would be approached,” he said.
His advocate, Omphemetse Mooki, asked him: “Did you have a say on what was left in or out?”
“No,” Simelane responded.
He said there were some meetings with the minister and the president that he would not have been a part of.
“[After the meetings] we would get feedback on what documents to file by way of annexure and that they should be sufficiently relative to the terms of reference of the inquiry.
“All the work that was done by the legal team relating to how government interacted to the inquiry was not my business because it did not involve my department – that part I had no authorisation to sign off [on].”
Mooki asked him if there was “any other document you had control over that you were reluctant to make available?”
“No,” Simelane replied.
In 2012, the Constitutional Court found the appointment by President Jacob Zuma of Simelane as national director of public prosecutions was invalid.
Simelane was appointed NPA boss in 2009.
The Constitutional Court found that Zuma had failed to consider evidence before him, including the findings of the Ginwala inquiry into the conduct of then-national director of public prosecutions (NDPP) Vusi Pikoli and the findings of a public service commission report when appointing Simelane – rendering the president’s decision “irrational”.
Simelane, in his capacity as justice director general was, according to the ruling, “intimately involved” in a dispute over the proper role of the then-national director of public prosecutions, Pikoli and the powers and duties of the justice minister.
Pikoli was suspended by then-president Thabo Mbeki in September 2007 after pursuing corruption charges against then-police commissioner Jackie Selebi. On October 3, Mbeki instituted a commission of inquiry, chaired by former speaker of Parliament, Frene Ginwala, into Pikoli’s fitness to hold office.
Simelane had presented the government’s evidence, under oath, at the commission. Ginwala subsequently criticised “with some severity” Simelane’s approach to giving evidence and its credibility.
Case against Selebi
Mooki said earlier on Monday that a letter, by then justice minister Brigitte Mabandla, that instructed that Pikoli not proceed in the case against Selebi was not an “instruction” issued by her.
The Bar, in its amended charges, argued that Simelane failed to disclose correspondence between the president and the minister, and the minister and Pikoli, which provided evidence that the minister sought to interfere in the prosecutorial independence of the NPA.
This included a letter drafted by Simelane, from the minister to Pikoli from September 2007, calling on Pikoli to stop the arrest of former police commissioner Jackie Selebi “until the minister has been appraised of all the evidence”.
It argued that the documents and facts were relevant to Pikoli’s suspension, which Simelane conceded under oath, but failed to include them in government’s submission to the inquiry.
The Bar also charged that he denied obtaining a written legal opinion on his interpretation, as opposed to Pikoli’s interpretation relating to the director general’s powers, and only admitted to it once it became apparent that Pikoli’s legal representatives were in possession of the opinion – which contradicted his own views.
Simelane began testifying about the letter from the minister to Pikoli before Mooki asked for proceedings to adjourn for the day.
“She asked that the letter be prepared – she indicated what she wanted to say to him and I prepared a draft for her,” Simelane said before the disciplinary inquiry was adjourned to Tuesday.
Pro forma prosecutor Mike Hellens told the panel earlier on Monday that while there were enough facts for an application to strike Simelane off the role of advocates, a disciplinary inquiry offered him a chance to clear his name.
“On the material available to us, the society [Johannesburg Society of Advocates] could have launched an application to strike him off [the advocate’s role],” Hellens said.
“This hearing [however] provides an opportunity for him to clear his name.
“[But] we believe we have a very strong prima facie case [against him].”
The inquiry panel was made up of advocates Sias Reynecke, Daniel Berger and Dali Mpofu.
‘Marginally different considerations’
Mpofu asked Hellens how his case related to the Constitutional Court judgment.
“Does it provide a shortcut that says merely because the Constitutional Court has made that determination, we can’t have the member as an advocate or do you accept that the Constitutional Court would have been looking at different considerations to us?” he asked.
Hellens said there were “marginally different considerations”, in that while the Constitutional Court found that his appointment was invalid, the panel was being asked to determine whether he should remain an advocate.
“[My case is to] make the hearing reach the same conclusions as the Constitutional Court independently.”
Mooki said in his lengthy opening statement that the Bar was determined “come hell or high water to make an example” out of Simelane based on an anonymous complaint leveled against him.
“Some individuals in the Bar are determined to make an example of him and in making an example of him it did not matter… as to what the facts of the matter are,” he said.
– Online comments on stories relating to this hearing have been disabled, as per a court order in which media houses were granted access to the hearing. – News24