Motala: beware polemics masquerading as analysis
Under the heading "SCA: Beware politics masquerading as law" and the sub-heading "The appeal court's Simelane ruling is a lapse in fairness" Professor Ziyad Motala has unleashed a broadside of criticism against the unanimous decision of the Supreme Court of Appeal (SCA) delivered by Judge Mohamed Navsa recently.Professor Kader Asmal is no longer with us to point out the errors in this attempt to analyse a judgment, as he has done in the past for Professor Motala; but it is not difficult to imagine how the late professor would have bristled at the excesses indulged in by his colleague at Howard Law School.
In the first place, the findings of the Ginwala Inquiry are only relevant to the extent that they ought to have operated as an amber warning light in President Zuma's quest to make Menzi Simelane his new National Director of Public Prosecutions (NDPP). The actual evidence given by Simelane before the Inquiry ought to have been a red light - if it had been examined - but the President sailed through the selection process as if all lights were green and without paying attention to the warnings. Perhaps he was in a blue light convoy.
The second grievous error in Motala's critique is the essentially irrelevant assertion that the Ginwala Inquiry could not be called impartial. It will be recalled that the Ginwala Inquiry was held to determine whether Vusi Pikoli was a fit and proper person to hold the office of NDPP. Pikoli contested the assertions of the executive to this effect and engaged the services of senior counsel to defend him, not only in the inquiry, but also when he appeared to explain himself to parliament and to review the decision of the president to dismiss him. The review was a success in that Pikoli was paid a multi-million rand settlement, with taxpayers money, and was given an acknowledgement that he was indeed a fit and proper NDPP.
Pikoli would have been advised to object if there was any suggestion that the Ginwala Inquiry was anything other than impartial. This is because everyone is entitled to have any dispute decided in a fair public hearing before an independent and impartial tribunal. This is what section 34 of the Bill of Rights says in express terms. It is quite startling that, in the absence of an attack on Ginwala by Pikoli - who had a lot to lose - Motala now contends that the Inquiry was neither competent nor independent. In fact, far from reaching a finding that would please the executive and the "prior president during a period of Machiavellian subterfuge", the Ginwala Commission exonerated Pikoli and found that he should keep his job as NDPP. The executive then had to latch on to some mild and minor criticism of Pikoli's attitude to national security in order to hang its hat on a fresh, previously unpleaded, basis for getting rid of him. The fear was that charging Jackie Selebi with corruption would endanger national security. It did not. Selebi is safely imprisoned and national security remains unimpaired despite his fall from grace.
It is not shocking, as Motala contends, that the SCA did not evaluate the nature of the Ginwala Inquiry. The court would be perfectly entitled to assume, in the absence of a challenge, that the Inquiry was fair, independent and impartial, as the Constitution requires it to be. The report was not placed before the SCA as proof of the truth of its contents, it was there to point out that by ignoring it Zuma did not discharge his constitutional obligations in a legal and rational manner, as he is required to do.
Nor is the Inquiry's finding the action of a co-equal branch of government, Professor. The credibility finding against Simelane is evidence based and is that of a properly constituted independent tribunal. The relevant evidence was placed before the court and the cogency of the finding is there for all of the world to see. Simelane, out of his own mouth, and via his own actions, revealed himself to be exceedingly economical with the truth, if not downright dishonest. Simelane eschewed a review, preferring the protection of the shields of the impi in the security cluster of the Zuma administration.
Simelane has also displayed an attitude toward the role of the NDPP which is somewhat out of kilter with the requirement of the Constitution that he act "without fear, favour or prejudice". He told his colleagues when he joined the NPA that he was there to "implement the vision of the ANC". The NDPP is meant to function independently and has the constitutionally conferred honour of being the only public servant with the power to make policy. This is policy in respect of prosecutions and ought to be formulated without regard to ANC visions or indeed the visions of any political party. Putting a party hack into a position of this nature is bound to severely compromise the proper administration of the criminal justice system. The DA was accordingly well within its rights to attack the decision to "deploy" Simelane as the successor to Pikoli, and it has done so with success.
The Constitutional Court has to confirm the decision of the SCA as it has sole jurisdiction to make the final decision whether conduct of the president (here the appointment of Simelane as NDPP) is constitutional. It has had previous experience of the mendacity of Simelane. This was part of the evidentiary material before the SCA. Simelane played fast and loose with the truth in an affidavit he filed in the first round of the Glenister litigation. The court forced counsel for the government to abandon all reliance upon the affidavit in the argument presented to the court after outraged justices pointed out the obvious mendacity of the assertions made on oath by Simelane. There are also other examples of Simelane's lack of probity on record in the case in which the SCA has ruled that he is not the appropriate appointee as NDPP. Motala's criticisms appear to be based on the judgment alone, without regard to the record before the court.
Motala's assertion that the SCA judges seized of the Simelane matter "resorted to...personal choices based on their intuition of the merits of the Ginwala Inquiry findings" comes within a hair's breadth of amounting to contempt of court. It is placed in a context in which, apropos of nothing at all, Motala writes "Some judges are biased, some lazy, some unintelligent. Many have a problem transcending the interests of their class, race or gender".
Our courts are subject only to the law and the Constitution which they apply impartially. It is impertinent to suggest otherwise when a non-racial bench comprising both genders and all the colours of the rainbow nation makes a finding that does not find favour in some quarters. The five judges have all been subjected to the scrutiny of the Judicial Service Commission, none has apartheid baggage, and to try to shoe-horn them into one class, race or gender is an impossible mission.
There is no appeal pending against the unanimous decision of the SCA, despite Motala's assertion to the contrary. Those who may be considering an appeal would be well advised to disregard his views.
Paul Hoffman SC
12 December, 2011
