Defending the Indefencible
The brouhaha around the appointment of Advocate Menzi Simelane is unlikely to die down any time soon. If anything, the stout defence by Minister of Justice Jeff Radebe of the President’s decision to appoint a surprise choice who was not even tipped by any of the pundits has simply added fuel to the fires of criticism that Simelane’s appointment has attracted.
This matter is not insignificant in the bigger scheme of things. The office of National Director of Public Prosecutions (NDPP) is a powerful one. The NDPP has policy making powers and he can issue directives, intervene when directives are not complied with and, most important of all, he can review any decision to prosecute or not to prosecute. All this is meant to take place in a legislative context which ensures that the prosecuting authority exercises its functions without, fear, favour or prejudice. Although the sphere of influence of the NDPP is confined to prosecution policy and its proper implementation, in a country awash with corruption the powers of the NDPP are not to be underestimated. After all, Vusi Pikoli was suspended for deciding to prosecute then Commissioner of Police Jackie Selebi (who is now standing trial on charges of corruption and defeating the ends of justice) and was ultimately fired basically because he likewise decided to prosecute Jacob Zuma on multiple charges of corruption and racketeering. Approximately a third of the members of the national executive committee of the ANC have been investigated for their alleged criminal activities ranging from kidnapping to Travelgate fraud in seriousness. The Scorpions were disbanded because of their willingness to tackle the "big fish" without fear or favour.
In his security cluster, the President has assembled a coterie of personalities who can surely be trusted by him to ensure that he is not ever again required to stand in a dock in the way that Schabir Shaik, his former financial advisor, was made to do as a precursor to being sentenced to 15 years imprisonment for corrupting Zuma. In this context, the appointment of Simelane can be seen as a final link in the carefully crafted safety chain.
According to the basic values and principles governing public administration set out in section 195(1) of the Constitution the public administration should have a high standard of professional ethics; services must be provided impartially, fairly, equitably and without bias in an accountable and transparent manner. Good human resource management practices must be cultivated and efficient, economic and effective use of resources must be promoted.
Public servants are expected to loyally execute the lawful policies of the government of the day. In the case of the NDPP, the prosecution policy is of his own making, after consultation with his Deputies and with no more than the concurrence of the Minister.
Before any person can be considered for appointment as NDPP she or he must-
"(a) possess legal qualifications that would entitle him or her to practise in all courts in the Republic; and
(b) be a fit and proper person, with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities of the office concerned."
Simelane has never actually practised in any of the courts in the Republic. He qualified at the University of Natal in 1996 and was duly admitted as an advocate. His experience, until this year, has not been in the NPA at all. After stints on tourism boards he was made Competition Board Commissioner. In that capacity he did not cover himself in glory, coming into conflict for some strange human resource management practices, including the employment of a foreigner with no work permit. His competence was also questioned, especially in the reported case concerning advocates’ tariffs in which his ability to appreciate the nature of his functions and the audi alteram partem rule were called into question. At the Department of Justice he succeeded Vusi Pikoli as DG and lamentably received a qualified audit 3 years in a row. It has been alleged that the books of the department are in disarray. Its legislative programme is years behind schedule and efficiency and effectiveness do not mark its activities. Only recently did the Transvaal Provincial Division get renamed, some 15 years after the demise of the Transvaal.
Simelane’s dismal showing at the Ginwala commission of inquiry into the fitness of Pikoli for office, in which he was effectively chief witness for the prosecution, is already legendary and need not be dwelt on here. Very properly the then Minister of Justice, Enver Surty, asked the Public Service Commission what should be done about this. It recommended an inquiry, but Jeff Radebe, the new Minister, has effectively fudged the inquiry on the flimsiest of pretexts, somewhat reminiscent of the complaint by Hlophe JP that he should have been given a hearing before any complaint was made against him. This argument was given short shrift by a (very) full bench in the Supreme Court of Appeal. It is not Radebe’s function to simply wave a magic wand to "disappear" the carefully considered and seriously adverse credibility, reliability and incompetence findings against Simelane.
At the moment, the Bar leadership is scrutinizing the track record of Simelane to see if it justifies an application to court for his striking off the roll of advocates. There is much material available for perusal. Should an application eventuate, then he would automatically be disqualified from acting as NDPP, indeed it is conceivable that he will be interdicted from doing so pending the final determination of the striking off application, should one be made.
The DA is concerned about the legality and rationality of the President's decision to appoint Simelane and is likely to approach the Constitutional Court on review, coupled with an interdict pendente lite restraining Simelane from taking up his appointment. Cope has already harnessed the services of the Public Protector whose powers certainly entitle her to take appropriate remedial action if she finds the appointment "Improper or likely to result in any impropriety or prejudice." Cope's complaint is bound to test the mettle and independence of the new incumbent, the more than competent Advocate Thulisile Madonsela.
This likely three pronged attack, and the unwillingness of any credible non-party political commentator to endorse the appointment ought to give the President cause for pause. Unfortunately, a rather warped view of constitutionalism (that has taken root in governing party circles which holds: victory at the polls entitles the winners to do as they please) militates against the prospects of a re-think. Yet again the courts will be obliged to test the conduct of the government against the standards of the Constitution. As there are already several cases of this kind pending the natural tension between executive and judicial arms is going to be ratcheted up in the months ahead. The DA is already involved in challenging the decisions not to proceed with the Zuma prosecution and the Hlophe JP disciplinary enquiry. There are challenges pending against the scrapping of the Scorpions and the refusal to appoint a commission of inquiry into the arms deals. The workings of the pardoning process are also the subject of a court challenge. In all of these matters the legality of the conduct of constitutionally created institutions is under scrutiny. Adding the Simelane case(s) to the burdens already cast upon the backs of the courts puts undue strain on the system. The President ought to reconsider the appointment of Simelane now that so many worms are crawling out of the woodwork. It is the right thing to do.
Paul Hoffman SC
1 December 2009
