The Role of Menzi Simelane and the Parameters of Constitutionalism
It is a matter of public record that the Constitutional Court was less than impressed with the showing of the then Director General in the Department of Justice, Menzi Simelane, in the first round of the litigation aimed at saving the Scorpions. Having told radio talk show host, John Robbie, in February 2008, that the demise of the Scorpions was a done deal, Adv Simelane "tactically" deposed to an affidavit in April 2008 in which he swore that no decision had yet been taken in the matter. Hours later a detailed Government Gazette containing a draft bill purporting to seal the fate of the Scorpions was published. The Court's outrage at this impelled counsel for the government to abandon all reliance upon the affidavit by Adv Simelane.In the later commission of enquiry into the fitness for office of former National Director of Public Prosecutions, Vusi Pikoli, the finding of Frene Ginwala was that Adv Simelane was an "arrogant liar" who played fast and loose with the truth. The Public Service Commission was so perturbed by this finding that it ordered a disciplinary hearing. Before the day of reckoning Adv Pikoli settled, at a cost to the taxpayer of R7,5 million (plus legal expenses along the way), and the matter of Adv Simelane's mendacity was swept under the copious carpet kept for such purposes in matters relating to the probity of those tasked with the administration of justice in SA.
No sooner had Adv Pikoli settled and, after only a few months in the National Prosecuting Authority, Adv Simelane was the surprise appointment to succeed Adv Pikoli. His name had not even been mentioned as a dark horse contender by the pundits who care to speculate upon such matters. His lack of experience in the prosecution service, his troubles with the Bar Council, which is investigating whether he is a fit and proper person to be an advocate, and the other black marks on Adv Simelane's work record, did not deter President Zuma from appointing him to lead the NPA. Cynics point out that the President is allergic to the dock in criminal courts and would prefer to have a malleable and politically correct appointee in place as a form of insurance against his being prosecuted again in future.
The official opposition has challenged the appointment of Adv Simelane in a review which is pending in the Gauteng North High Court. Irrespective of the outcome there, it is likely that the matter will find its way to the Constitutional Court in due course. A lot of water will most probably flow under the bridge before the litigation is finally determined.
Meanwhile, on the parliamentary front, the Shadow Minister of Justice, Dene Smuts, is busy holding feet to the fire in respect of the restructuring of the NPA which Simelane seems bent on carrying out, with or without the concurrence of the Minister of Justice. She asks three questions which bear repetition and examination:
- Why is Adv Simelane getting away with cutting heads off the Assets Forfeiture Unit (AFU) and Serious Commercial Crimes Unit (SCCU)?
- Is he doing so by creating the new concept of "dotted reporting lines" in anticipation of cutting along the dotted lines?
- Who stands to benefit from feeling safe... not from crime but from prosecution?
"I have advised that the restructuring be halted as consideration of the capacity and alignment of the organization should take into account the new Outcomes Performance Regime, recently adopted by Cabinet."
What this means, and where the truth of the matter lies, will no doubt emerge in the fullness of time. It is nevertheless instructive to examine the constitutional framework in which the NDPP, as head of the NPA, and the Minister must function.
The Constitutional Court has long held the view that the NPA is an independent body. This finding is based on the expression used in the Constitution that national legislation must ensure that the prosecuting authority exercises its functions "without fear, favour or prejudice". This could be construed as a constitutional constraint upon the legislature: a provision limiting all laws that pertain to the NPA to those that ensure its independence.
The position of the NDPP is constitutionally unique. Although a public servant, the NDPP is constitutionally clothed with "prosecution policy" making powers. This is done after consulting the Directors of Public Prosecutions and with the concurrence of the Minister. Usually the making of policy is the preserve of the executive branch of government. All that the Minister is given by the Constitution as regards the prosecuting authority is "final responsibility", an expression which is also used in the Namibian constitution. In Namibia "final responsibility" has been given a limited meaning relating to the responsibility to account to parliament for the activities of the independent prosecution service. The courts in SA have yet to pronounce upon the extent and meaning of the expression. Certainly, the run of the mill position of civil servants is to "loyally execute the lawful policies of the government of the day". The NDPP, unlike all other civil servants, both makes (with the concurrence of the Minister) and executes the prosecution policy of the land.
What happens then, if Adv Simelane insists upon his dotted reporting lines despite the absence of concurrence evident in the Minister's response quoted above? Two steps are available: it is open to an NDPP at loggerheads with the Minister to approach parliament about the disagreement on policy. This is, in effect, what happened when the acting NDPP, Mokotedi Mpshe, made fruitless submissions to parliament in favour of the retention of the Scorpions. If parliament sides with the Minister, as is likely to happen in our dominant party democracy, then the only other avenue open to the NDPP is to approach the courts for the protection afforded by the constitutional provision that the laws "must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice". It is then up to the courts to decide whether the contested item of prosecution policy (in this case whether or not to decapitate the AFU and SCCU) is compliant with the Constitution. If it is not, it falls to be struck down as invalid conduct (or law) for its inconsistency with the Constitution. In this way the rule of law is upheld and the power of politicians constrained. These checks and balances on the exercise of power are of the essence of constitutional democracy. In sensitive areas, such as the formulation of prosecution policy at a time when the President and about a third of the members of the national executive committee of the governing party have been criminally investigated, it is comforting to remember that the fundamental fairness of the rule of law is available to protect the people against excesses that may otherwise be perpetrated. Equality before the law is guaranteed to all in the Bill of Rights.
Paul Hoffman,
14th September, 2010
