Simelane's Start
Since his appointment last November as National Director of Public Prosecutions, Menzi Simelane, former Director General of Justice, has comported himself in a manner that confirms the well founded nature of the concerns of his critics. He is constantly making news for all the wrong reasons. His appointment was so unwelcome that the decision of the President to promote him has been taken on review by the official opposition on the grounds that he is not a fit and proper, suitably qualified, person for the position. The case is due for hearing in Pretoria in September. Even before he was appointed he ruffled feathers among his new colleagues at the National Prosecuting Authority by announcing to them that he was being deployed among them to implement the vision of the ANC for the NPA. That was hardly an encouraging start in a post in which the incumbent is supposed to function independently - "without fear, favour or prejudice".After his inauspicious start, Simelane has made headlines for muzzling his colleagues by forbidding them from talking to the press, for giving Fana Hlongwane of arms deal fame a "stay out of jail" card and for orally instructing the senior public prosecutor for the West Rand to withdraw the state's opposition to the granting of bail to well connected musician Jub Jub, who was visited by Julius Malema while in jail pending the bail hearing in which he was granted R10,000 bail by the presiding magistrate. Justice Malala nominated Simelane "loser of the week" in his "Justice Factor" eTV programme in the wake of these developments, complaining that Simelane seems to favour the rich, the powerful and the corrupt when, as the Constitutional Court has held, the NDPP should be a completely independent functionary.
It is useful to scrutinise these various activities of our new NDPP against the criteria of the rule of law and against the values and principles of the constitution which are applicable to them and him.
The World Justice Project has developed four universal principles of the rule of law:
- The government and its officials and agents are accountable under the law.
- The laws are clear, publicized, stable and fair, and protect fundamental rights, including the security of persons and property.
- The process by which the laws are enacted, administered and enforced is accessible, fair and efficient.
- Access to justice is provided by competent, independent, and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.
The principles and values according to which the public administration is run, (and the NPA is an independent part of the civil service), include the promotion of a high standard of professional ethics in which services are "provided impartially, fairly, equitably and without bias." People's needs must be responded to; accountability is a requirement and transparency must be fostered "by providing the public with timely, accessible and accurate information." Section 195 of the constitution also stipulates that: "good human resource management and career development practices, to maximise human potential, must be cultivated."
By preventing prosecutors from communicating with the press, Simelane is cocking a snook at the rule of law insofar as its accountability element is concerned and he is also clearly in breach of the transparency requirements of section 195(1) (g) of the constitution.
Simelane's inexplicable stance on Hlongwane undermines the "accessible, fair and efficient" elements of the enforcement principle of the rule of law. His failure to make public the contracts upon which he relies in aborting the proceedings against the assets of Hlongwane in Lichtenstein is not open and transparent, as it should be, both under the rule of law and according to the principles by which the public administration is governed.
It can hardly have escaped the NPA's attention that the name of Hlongwane crops up on eight pages in former ANC MP Andrew Feinstein's book "After the Party" in which he discloses that a senior party member told him that ANC election campaigning was illicitly funded from the proceeds [commissions] on the arms deal. Paul Holden, the young historian who authored the handbook "The Arms Deal in your Pocket" has a special mention for Hlongwane in his Appendix A where he is identified as a "former advisor to Joe Modise" who is alleged to have received "a substantial commission for ‘work done on the Gripen project' ". The party who paid this "commission", British Aerospace, has entered into an elaborate plea bargain with the Serious Fraud Office in the UK. Perhaps most telling of all is what ANC intelligence operatives disclosed to Terry Crawford-Browne in June 1999: "Joe Modise and the leadership of MK see the arms deal and other government contracts as an opportunity to replace the Oppenheimers as the new financial elite" via "kickbacks to the ANC in return for political protection" as recounted in "Eye on the Money" page 13. In the trial of Schabir Shaik it was proved beyond any reasonable doubt and to the satisfaction of all three upper tiers of our courts that arms deal related kickbacks for political protection are a reality in the new SA.
Justice Malala's complaint that Simelane favours the rich, the powerful and the corrupt seems to be well founded. His interference with the discretion of the senior public prosecutor for the West Rand in order to spare Jub Jub and his fellow dicer, both facing charges of murder, the experience of an opposed bail hearing is surely not the last occasion on which the actions of Simelane will add to the criticisms of his fitness for office. The prosecutor concerned, Andre Lambrecht, was demoted to ordinary court prosecutor shortly after the Jub Jub matter was heard. The Chief Magistrate of Johannesburg was shocked by this development describing Lambrecht as an extremely able chief prosecutor of ten years standing. A former deputy NDPP, Adv Jan Henning SC, unaffected by the muzzling perpetrated by Simelane, calls the demotion a "gross insult" which was "wholly undeserved" according to reports in the Afrikaans press. The new acting head of the NPA in Gauteng, Adv Gladstone Maema, who was unable to get a written instruction out of Simelane in relation to the bail hearing, assures the world that Lambrecht's "move" has nothing to do with the Jub Jub case and was decided upon earlier in order to beef up the knowledge available among those who prosecute in the lower courts. Lambrecht, who has declined to comment, has taken his demotion up with his union, the Public Servants Association, which, not without justification, claims that he has been subjected to an unfair labour practice. His treatment does not appear to accord with the type of human resource management prescribed in the constitution.
Cadre deployment in the public administration had already been struck down as illegal and unconstitutional by the High Court, long before Simelane was appointed NDPP. A truly professional public administration in which due respect is accorded to the values and principles that are prescribed by law is long overdue in SA. And a commission of enquiry into the arms deals would not go amiss.
Paul Hoffman SC
28 March 2010.
