Simelane in the soup
The Simelane saga gets curiouser and curiouser.Menzi Simelane, the embattled National Director of Public Prosecutions in the Zuma administration, has let it be known that he disagrees with the unanimous finding against him in which five judges of appeal ruled that his appointment as NDPP is invalid. The basis upon which he so disagrees reveals his woeful lack of understanding of the basic tenets of constitutionalism and is yet another indicator of his unfitness for the office he holds. Simelane is now arguing that the conduct of the President in deciding to appoint him is not open to judicial scrutiny at all and for this reason the decision of the Supreme Court of Appeal should not be upheld by the Constitutional Court when it considers the necessary confirmation of the order made against him.
Ours is a constitutional democracy under the rule of law. After the demise of apartheid and its system of parliamentary sovereignty, the people of SA concluded a national accord in terms of which they opted, overwhelmingly, for the values of the supremacy of the Constitution and the rule of law. This means that politicians and presidents can no longer do as they please; they are constrained by the supreme law, our national Constitution, and the rule of law both of which require legality and rationality in the conduct of state affairs. The Constitution expressly prescribes a multi-party system of democratic government "to ensure accountability, responsiveness and openness." This is a far cry from the system in Rome when Caligula was emperor and appointed his horse as consul. Unlike Caligula, President Zuma does not have an untrammelled discretion to make whomsoever he pleases the NDPP. He is constrained by the legal requirements relating to experience and qualifications. He is responsible to appoint a fit and proper person to this key office in the administration of criminal justice. If his conduct in so doing is inconsistent with the law and the Constitution it is invalid.
The essential difference between the old South Africa and the new dispensation is that political power is now constrained by the requirements of a supreme law - the Constitution. No longer may those with their hands on the levers of power do as they please. All laws and conduct have to be able to pass constitutional muster. In the succinct words of section 2 of the Constitution, which Simelane should ponder:
"This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled."
Quite apart from the apparently insurmountable constitutional and legal hurdles he faces in challenging the decision of the five judges of appeal, Simelane must surely have twigged by now that the President himself has lost confidence in him. Not only is he on special leave, replaced temporarily by a deputy, the President has officially, via his spokesman Mac Maharaj, let it be known that he will not be opposing the confirmation of the order of court by the Constitutional Court. He has withdrawn his appeal in the matter.
In any employment relationship there is a duty of loyalty and trust. The presidential decision not to stand by the beleaguered NDPP he appointed does not speak of loyalty to Simelane; the trust that ought to be at the root of the working relationship between the two men has evaporated. For Simelane to box on when Zuma has already thrown in the towel is most curious. Does he really want to stay on as the appointee of a president who no longer supports him?
Even more curious is the line being taken by the Minister of Justice, who is also a party to the litigation as the constitutionally accountable minister. He is neither boxing on, like Simelane, nor has he thrown in the towel, like the president. According to Maharaj, while the minister will not oppose the granting of the confirmation order, he needs legal advice from the Constitutional Court in relation to ancillary aspects of the process required for the appointment in question.
If Maharaj has correctly understood the stance of the Minister, who has not withdrawn his appeal, it is difficult to ascertain exactly what it is that the Minister hopes to achieve. Courts do not dispense legal advice. There is the office of the Chief State Law Adviser, Enver Daniels, for that. Courts determine disputes between litigants. There is a dispute between the Democratic Alliance and Simelane, who is clinging tenaciously to office. There is no dispute between the DA and the President, who will abide the decision of the Court. The position of the Minister of Justice is by no means clear; his appeal stands (for now) but Maharaj thinks that he will be asking for advice rather than contesting confirmation of the invalidity order. This means that three different elements of the government who have been sued are each taking a different stance in relation to the same issue. Curiouser and curiouser, as Lewis Carroll once wrote.
This falling around in confusion is symptomatic of the weakness of the Zuma administration. While Simelane is entitled to fight for his professional life, the wisdom of doing so in the circumstances in which he finds himself is questionable.
One of the main weaknesses of the Zuma administration is that it has chosen to persist with the illegal practice of deploying its cadres in the public administration. When he joined the NPA Simelane blithely announced to his shocked new colleagues that he was there to "implement the vision of the ANC for the NPA". Those words should never fall from the lips of any public servant. The Constitution requires that the principles and values governing the public administration include that "services must be provided impartially, fairly, equitably and without bias". This general rule is even stronger in the case of the NDPP, the only public servant with policy making powers. The NPA is required to function "without fear, favour or prejudice". This means, according to the Constitutional Court, "independently". It certainly means independently of any political party's agenda or vision.
The NDPP is a functionary whose loyalty is to the Constitution and the law as it applies to the proper administration of criminal justice. Simelane should not fear the powerful, favour the well-connected or prejudice the public. He has been criticised by Justice Malala for favouring the rich, the powerful and the corrupt. No ANC bigwigs have been prosecuted successfully on his watch except for Jackie Selebi, whose skin Simelane tried to save when he was still director general in the Justice Department. Simelane could never claim that it was at his initiative that Selebi was convicted for corruption. His loyalty to the ANC hobbles his ability to do his job properly. Feeling beholden to the cadre deployment committee whose decision placed any civil servant into position is a debilitating conflict of interests situation that is easily avoided by using sound human resource management principles to appoint on merit, not on ANC 'political connectivity'.
The other weakness of the Zuma administration that impacts on Simelane is the withdrawn 783 charges of corruption against Zuma himself, charges that may yet be revived by the courts as the outcome of a pending review in which the setting aside of the decision not to proceed is sought. As a loyal cadre of the ANC, Simelane may well have been elevated to the position he holds as insurance against the president ever finding himself in the dock in a criminal court. This is not a legitimate purpose of government. It is a good reason for Simelane to devote his time and talents to a party political position, if one can be found for him. His days as NDPP are numbered.
Paul Hoffman SC
30th December 2011
