Simelane not out of the woods yet
The perplexing decision of Acting Justice Piet van der Byl in the review of the decision by Jacob Zuma to appoint Menzi Simelane as National Director of Public Prosecutions (NDPP) is to be taken on appeal by the disappointed Democratic Alliance (DA). The sooner the case reaches the Constitutional Court the better for the administration of justice, in particular the criminal justice system. This is so irrespective of the outcome of a matter which ought to have been taken directly to the highest court because it involves an attack on the exercise of a constitutional responsibility of the President.Not only is it invidious for lower courts (and in particular acting judges) to rule on matters of this nature, the Constitution itself provides that only the Constitutional Court may decide whether the President has failed to fulfil a constitutional obligation [section 167(4)(e)]. Appointing an NDPP is a constitutional obligation of the President [section 179 (1) (a)] so the wisdom of litigating the matter in the High Court is questionable. Surprisingly, none of the respondents in the review took the point. This is not to say that the point will not arise in any appeal to any forum available to the DA.
It is not in the interests of the public that there be long running litigation over so sensitive and so central an issue, namely whether a legal and rational decision was properly taken in promoting Adv Simelane to the position he occupies: the only civil servant in the country who is accorded policy making powers in the Constitution and a functionary who (along with judges and Chapter Nine Institutions) is enjoined by the Constitution to function "without fear, favour or prejudice" [section 179(4) and (5)]. This phrase has been interpreted to mean "independently" by the selfsame Constitutional Court. In addition to this constitutional requirement, the NDPP is required by legislation to swear an oath of office in which his or her independence is solemnly re-affirmed.
Adv Simelane is a deployee of the national democratic revolution of the governing alliance. His primary loyalty is to the ANC. Prior to the dissolution of the Scorpions he took time off from his job as Director General of Justice and campaigned actively among the rank and file of the ANC in Kwazulu-Natal to ensure that the demise of the Scorpions was accepted by the majority of the members of the tripartite alliance. When he joined the National Prosecuting Authority (NPA), months before his promotion to its leadership, he blithely announced to his new colleagues that he perceives his role in the prosecuting authority as one in which he will "implement the ANC's vision for the NPA".
This vision is not one that is compatible with the requirements of the Constitution. The National Democratic Revolution (NDR) contemplates a future in which the alliance will enjoy hegemonic control of all the levers of power in society. Not for it a pesky NDPP like the predecessor of Adv Simelane, who independently decided to prosecute the Chief of Police (with success) and Jacob Zuma (without success). Vusi Pikoli was suspended for the first of these two decisions and fired for the latter. He contested his dismissal and eventually settled on the steps of the court for a R7,5 million pay-out, one which ought not to have eventuated if there was any good reason to dismiss him.
Adv Simelane played a pivotal role in the suspension of Adv Pikoli. The propriety of what he did and did not do in that process was the subject of highly critical commentary in the report of the Ginwala Commission which investigated the fitness for office of Adv Pikoli. Both the integrity and the probity of Adv Simelane came under adverse scrutiny not only on that occasion but also in other litigation in which he has been involved in the course of his short career in public service and his even shorter career in the law. It is accordingly a matter of some moment that there should be finality about his fitness for the high office he occupies as his role in the criminal justice administration is a central one. Sight should also not be lost of the repeated qualified audits which characterised his tenure as Director General of Justice.
The track record he has built up in the short time that he has been NDPP is not without blemish. Losing the John Block bail application, purporting to restructure the NPA without the imprimatur of the Minister of Justice (who is constitutionally required to concur in prosecution policy decisions), letting Fana Hlongwane off the hook for no apparent reason and being complicit in the closing down of the arms deal investigations, all suggest that the worst of the DA's reservations about his fitness for office are coming to pass. In the NPA, staff morale has reached new lows and cadre deployment new highs.
In these circumstances it is appropriate to recall the words of Justice Froneman, who has recently been promoted to grace the Constitutional Court Bench:
"A foundational value of our new constitutional order is the rule of law. The rule of law is an evolving concept in our jurisprudence and its full implications still need to be explored and elucidated. At its broadest level, however, it means that all legal actors, be they public or private, are bound by the law. This includes all the arms of government: executive, legislative and judicial. It also includes all private legal persons, natural or juristic. Thus the conduct of all public officials, from the highest to lowest, as well as the conduct of private persons or juristic persons, is subject to judicial scrutiny. Put in other words, the exercise of all power, public or private, is in the end subject to judicial scrutiny and adjudication. The nature of judicial adjudication (or 'judicial review') remains the same no matter who is involved, but the degree or intensity of judicial scrutiny or review may vary, depending on the kind of power exercised and the interests affected by the exercise of that power."
The public interest is affected by the exercise of the President's power to appoint an NDPP. It is not a matter of subjective discretion (as was argued in the review) it is a matter of making a choice which is legally and rationally defensible. This is objectivity determinable under the rule of law. Acting Judge van der Byl does not really seem to get to grips with these considerations. No functioning constitutional democracy can afford a chief prosecutor whose integrity and probity is the subject matter of what the judgment describes as a "formidable onslaught on Mr Simelane's fitness and propriety for appointment as NDPP". It is important for the common weal that there be judicial finality on the validity of the President's decision to appoint Adv Simelane as the NDPP.
Paul Hoffman SC
15th November 2010
