After all, this year President Zuma first appointed and then fired Willem Heath as the head of the Special Investigative Union; first opposed the establishment of an arms deal inquiry before instituting one and eventually fired two cabinet Ministers and suspended the Police Commissioner – but only months after the Public Protector had found them guilty of maladministration.

Yet, it is not clear that the recent decision of President Zuma on Adv. Menzi Simelane complies with the provisions of the Constitution and the NPA Act. It is therefore far from clear whether President Zuma has done the right thing in this case. (Or put differently, he might have done the right thing but in an unlawful or unconstitutional manner.)

In a statement issued yesterday, the Presidency (somewhat confusingly) said that it had decided not to appeal the decision of the SCA.

However, the Minister of Justice and Constitutional Development, Mr Jeff Radebe will pursue the matter, seeking clarity on various issues in the course of the mandatory Constitutional Court certification process, with the full support of the President. In the meantime, the President has decided to place Advocate Simelane on special leave. Advocate Nomgcobo Jiba, Deputy Director of Public Prosecutions, will act as the National Director of Public Prosecutions until further notice.

Part of this pattern was the appointment, early in his tenure as President, of Adv. Menzi Simelane as National Director of Public Prosecution (NDPP). The abolition of the Scorpions and the creation of the far less independent Hawks can similarly be seen as an attempt to protect the President from future prosecution for taking a bribe from fraudster Shabir Shaik.

President Zuma’s recent statement that the executive ”has the sole discretion to decide policies for the government”, that the executive “must be allowed to conduct its administration and policy-making work as freely as it … can” and that the “powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote”, can thus arguably be read as an expression of concern about the Constitutional Court’s decision to torpedo the Hawks, and the resultant dismantling of parts of the iron ring President Zuma had erected around himself to protect himself from prosecution for corruption.

It is against this background that today’s judgment of the Supreme Court of Appeal (SCA) declaring the appointment of Menzi Simelane unlawful, must be read. In Democratic Alliance v President of the Republic of South Africa and Others a unanimous court, in a judgment authored by judge Mahommed Navsa (Heher, Mhlantla, Majiedt JJA and Plasket AJA concurring) the SCA found that the President had acted irrationally and hence unlawfully when he appointed Simelane as NDPP and acted in breach of the prescripts of the Constitution and section 9(1)(b) of the National Prosecuting Authority Act 32 of 1998.

Perhaps believing that it was required to provide the President with some pointers on the nature of a constitutional democracy like ours, the SCA pointed out that ours is a democratic state founded, amongst other values, on the supremacy of the Constitution and the rule of law. Section 1(d) of the Constitution commits government to democracy and to accountability, responsiveness and openness. Section 2 of the Constitution reaffirms that the Constitution is the supreme law of the Republic and that law or conduct inconsistent with it is invalid and that the obligations imposed by it must be fulfilled. Thus, every citizen and every arm of government ought rightly to be concerned about constitutionalism and its preservation.

This meant that  the President, as the supreme upholder and protector of the Constitution, is its servant. Like all other organs of state, the President is obliged to obey each and every one of its commands. In what could be read as an indirect response to the recent statements of President Zuma, the SCA then proceeded to make the following powerful observation:

No-one is above the law and everyone is subject to the Constitution and the law. The legislative and executive arms of government are bound by legal prescripts. Accountability, responsiveness and openness are constitutional watchwords. It can rightly be said that the individuals that occupy positions in organs of state or who are part of constitutional institutions are transient but that constitutional mechanisms, institutions and values endure. To ensure a functional, accountable constitutional democracy the drafters of our Constitution placed limits on the exercise of power. Institutions and office bearers must work within the law and must be accountable. Put simply, ours is a government of laws and not of men or women.

The SCA pointed out that institutions of state integral to the well-being of a functioning democracy have to be above reproach, have to be independent and have to serve the people without fear, favour or prejudice. Given the fact that the NPA has “awesome powers” and “that it is central to the preservation of the rule of law”, it is imperative that members of the NPA exercise these powers with the utmost integrity. That must mean that the people employed by the prosecuting authority must themselves be people of integrity who will act without fear, favour or prejudice.

The SCA again reminded us that in the Certification judgment the Constitutional Court stated that section 179(4) of the Constitution provides that the national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice. “There is accordingly a constitutional guarantee of independence [of the NPA], and any legislation or executive action inconsistent therewith would be subject to constitutional control by the courts.”

This is why the NPA Act requires that the NDPP must, inter alia “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.” This was an objective standard. The President could not decide, based on his own personal views and disregarding all the available evidence, that his choice for NDPP was “fit and proper”.

This is so because the relevant section of the NPA Act does not use the expression “in the President’s view” or some other similar expression. Qualities like “integrity” must be assessed objectively. A person would have integrity if he or she possesses characteristics like‘honesty, principle, honour, virtue, goodness, morality, purity, righteousness, probity, rectitude, truthfulness, trustworthiness, incorruptibility, uprightness, scrupulousness, reputability.

In the light of the above the President was required to obtain sufficient and reliable information about the candidate’s past work experience and performance; to obtain sufficient and reliable information about the candidate’s integrity and independence; and in cases where the candidate is the subject of allegations calling his fitness to hold office into question, a satisfactory process to determine the veracity of the allegations in a reliable and credible fashion.

In this case the starting point of the President was wrong. The Minister of Justice had stated that the President told him, at the outset, before asking for his input, that the President had “firm views” on appointing Mr Simelane as NDPP. The President could not argue, as he did, that absent any firm evidence to the contrary he could conclude that Simelane was fit and proper. More was required from the President to comply with the law.

This would especially be the case in a situation like the one under review where serious findings of impropriety had been made by the Ginwala Enquiry and by a court of law against the President’s choice of NDPP.

A fundamental problem for the Minister and the President is that they both considered that the GE [Ginwala Enquiry] report was irrelevant or, based on a rigid view that the GE enquired into Mr Pikoli’s fitness for office and did not concern Mr Simelane’s integrity. It is clear from the President’s account of the discussion with the Minister and from his description of his mindset…. that he took the view that the GE report, insofar as it related to Mr Simelane, was a note of precaution to the National Executive, the NPA and Parliament and that it was not a report intended to have Mr Simelane disqualified for future appointments. The President and the Minister wrongly discounted Minister Surty’s serious concerns about the Ginwala report and its impact on Mr Simelane. So too they were too easily dismissive of the PSC’s [Public Service Commission's] attitude in this regard. It ought also to have been a matter of concern that the GCB had been poised to enquire into Mr Simelane’s conduct ─ it is a matter that would directly affect public perception about his candidacy. It is not unlikely that the GCB probe ground to a halt because of the ensuing litigation.

This follows the “censoring” of the Mail & Guardian on Friday after it wanted to publish an article based on in interview conducted with Mr Maharaj by the now defunct Scorpions while it was investigating charges of corruption against Maharaj in connection with the awarding of a tender to produce credit card drivers licences to a company associated with fraudster Schabir Shaik. (If you are sympathetic to Mr Maharaj, you might argue that the Mail & Guardian was not censored but merely forced to comply with the provisions of the NPA Act – as any law abiding citizen would be expected to do.)

Section 28 of the NPA Act empowers the NPA to summons any suspect or witness who is then required to appear and to testify truthfully about any matter relating to a criminal investigation. The suspect or witness is also legally required to produce any book, document or other object in his or her possession or under his or her control which he or she has been summoned to produce. A persons who fails to answer fully and to the best of his or her ability any question lawfully put to him or her; or who gives false evidence knowing that evidence to be false or not knowing or not believing it to be true, is guilty of a crime and if found guilty would be liable to a fine or to imprisonment for a period not exceeding 15 years or to both such fine and such imprisonment.

I have no idea what allegations were contained in the blacked out report in the Mail & Guardian. However, if the newspaper had information in its possession that Mr Maharaj had lied to the NPA, this would be an explosive development as it would mean that Mr Maharaj had committed a crime for which he would be liable to a sentence of up to 15 years in jail. It would then clearly be in the public interest to publish this information because one has a legal duty to report the commission of a crime (and a cover up by the NPA or the Police who had failed to pursue it). If the newspaper has information which proves that there was a discrepancy between Mr Maharaj’s testimony and the proven facts, Mr Maharaj would have no leg to stand on.

However, if the report dealt with allegations levelled against Mr Maharaj during the criminal investigation, allegations which were never pursued in a court of law, the newspaper would be on more shaky grounds and Mr Maharaj might have been justified in stopping the newspaper from publishing its report. There are good reasons to prohibit the publication of documents in possession of the NPA or of the interview conducted with suspects and witnesses in terms of section 28 of the NPA Act. Confidentiality would normally be required to protect the NPA and to safeguard its work to ensure the successful prosecution of criminal offences. If documents and information dealing with a criminal investigation that is in possession of the NPA are routinely leaked, it would make it almost impossible for the NPA to do its job properly and may well sabotage criminal investigations and prosecutions — which would lead to many criminals being left off the hook.

Confidentiality also allows witnesses and suspects to speak truthfully to the NPA when they are interviewed without fear of having their words twisted or of being exposed unfairly by a newspaper for something the suspect might never have done. Publishing untested allegations against a person — especially if it emanates from a supposedly credible source like the NPA – could well ruin that person’s reputation. Where the information is credible and corroborated by various sources or by authentic documents, the situation will of course be very different and a newspaper will then more often than not be justified in publishing the documents — even if it risks damaging the reputation of the suspect. (That is why the Mail & Guardian could surely not be faulted for publishing information about the encrypted fax which implicated President Zuma in criminal activity.) However, where the allegations are not credible or backed up by other evidence, the suspect would need to be protected and confidentiality would have to be respected.

I have to admit that providing for a 15 year sentence to be imposed on anyone breaching these provisions is rather draconian, but any court asked to sentence a person found guilty of this section would surely take this into account and will never impose such  a harsh sentence — unless the judge has absolutely no sense of justice or fairness and the values of openness and transparency enshrined in the Constitution.

Section 46(6) of the NPA Act prohibits an NPA investigator from disclosing to any other person any information which came to his or her knowledge in the performance of his or her functions as an investigator. The section also prohibits any person from disclosing to any other person the contents of any book or document or any other item in the possession of the prosecuting authority (such as the infamous encrypted fax which implicated Jacob Zuma in bribery and corruption); or the record of any evidence given at an investigation done in terms of section 28 of the Act.

The National Director of Public Prosecutions can, however, give permission for such a disclosure. One assumes that this is what happened when the content of the encrypted fax implicating President Zuma was leaked to the Mail & Guardian and then published in that newspaper. If it was not, then the newspaper committed a crime that could have landed its journalists and editor in jail for 15 years.

A court of law can also require a person to hand over the above information or to disclose it. It is unclear whether the Mail & Guardian could rely on this section to approach a court for an order allowing it to publish the alleged incriminating evidence against Mr Maharaj. In the context of the Act, it might well be that this provision relates to the power of a court to order the release of information to other affected parties (like the accused) or to the court itself. I suspect the Mail & Guardian would not be able to rely on the right to freedom of expression to argue that a court has a duty to order the Mail & Guardian to disclose the information. That would be a rather novel interpretation of the section.

At the same time, the section does NOT prohibit anyone from possessing the said documents or from being in possession of information about the interview conducted in terms of section 28 of the NPA Act. This means the provisions of the NPA Act differ markedly from the provisions of the (still) rather draconian Protection of State Information Bill, which criminalises the mere possession of secret documents. Mr Maharaj is therefore barking up the wrong tree when he says the newspaper committed a crime. The newspaper would only have committed a crime if it had disclosed the content of the interview, something which it did not do because Mr Maharaj’s lawyers stopped them from doing so.

A question that arises is whether section 41(6) of the NPA Act may be declared unconstitutional. It clearly infringes on the right to freedom of expression as it prevents newspapers from publishing information about public figures like Mr Maharaj – even when such information may expose the public figure as a criminal or cast doubt on that persons probity or honesty. The only question would be whether the section is nevertheless constitutes a justifiable limitation on the right to freedom of expression in terms of the limitations clause contained in section 36 of the Constitution.

I suspect the issue here is not as clear cut as the Mail & Guardian suggests. As I noted above, there are very good reasons for protecting the confidentiality of NPA documents. However, I nevertheless suspect that there might well be a problem with the constitutionality of section 41(6) of the NPA Act. It places an absolute ban on the disclosure of the information and prescribes a maximum sentence of 15 years for anyone contravening the section. It does not allow for any exception to be made — even when the disclosure would be in the public interest and even when disclosure would be mandated by law (as our law places a legal duty on anyone to report the commissioning of a crime).

It is true that the National Director of Public Prosecutions (NDPP) may waive this provision if he believes that this would be appropriate. However, there is dark cloud hanging over the current NDPP and his credibility, honesty and respect for the law and the Constitution has been questioned by the Ginwala Inquiry and by our courts. The SCA may well soon find that his appointment was unlawful. In these circumstances, and given the fact that the President appoints the NDPP (the very President whose spokesperson is allegedly implicated in the Mail & Guardian story), the safeguard involving the NDPP might be illusory and of no use. In fact the safeguard may well be abused by a NDPP who might only allow the disclosure of documents relating to criminal investigations against individuals (inside and outside the governing party) who happened to be political opponents of the President.

Although this is a relatively close call, I would guess the Constitutional Court will find that the section is not justifiable in terms of the limitation clause because it is over-broad. A more limited provision, providing for confidentiality in most cases but also creating a more credible safeguard to ensure the confidentiality provision is not used to protect liars and crooks from exposure, might be required to safe the section from unconstitutionality. But the case may well go the other way in some of our courts. Judges who are not imbued with the values of openness and transparency, who take for granted the integrity and honesty of the NDDPP or are overly executive-minded, might well find this provision justifiably limits the right to freedom of expression as it allows the NDPP to allow for publication.

No wonder the editor of the Mail & Guardian did not publish the information which would have forced him to take his chances in court later on. He was probably advised that there is a real risk that he would be convicted and sentenced to imprisonment and that it was not an absolute certainty that a challenge to the impugned section would be successful.

(For example, almost all our politicians profess to want to serve the poor, but some believe they can do that task so much better if they drove around in R1.2 million luxury German cars and live in the lap of luxury in 5 Star Hotels at taxpayers expense, while others endorse government policies and actions – including water and electricity cut-offs and forced evictions – that are decidedly anti-poor.)

Sometimes the reasons the politicians present to justify their actions actually do the opposite of what they were supposed to do. When one studies the reasons provided by politicians to justify their actions one is often left with the feeling that the politicians are so brazenly disrespectful of citizens that they do not even bother to cover up their lies and deceit with even halfway credible justifications. The tawdry saga of the scrapping of the Scorpions and the creation of the Hawks perfectly illustrates this rather sad point.

In the Glennister judgment the majority of judges of the Constitutional Court found that our Bill of Rights placed a positive duty on the state to create an independent corruption fighting body. The Hawks, the court found, was not such an independent body. Of course, the Hawks we were told, was an independent body that would truly help us win the battle against corruption. We now know that these claims were far from true.

During debates about the scrapping of the Scorpions at least two arguments were used by the politicians to justify the replacement of the Scorpions with the Hawks. Although almost all of us knew that the move was nothing but a self-serving attempt aimed at protecting corrupt politicians from criminal sanction, few of us actually called out the politicians for these shameless lies they were peddling.

First, it was argued that it was not constitutionally tenable that a body investigating crime should be situated in the National Prosecuting Authority (NPA) as the Constitution clearly created a separate police force and prosecuting authority. Having a unit in the NPA involved in investigating crime was therefore constitutionally problematic as prosecutors should prosecute and police officers should investigate crime.

However, the amendments to the South African Police Services Act declared invalid last week contained provisions that made a mockery of this argument. Section 17F(4) stated that the National Director of Public Prosecutions “must ensure that a dedicated component of prosecutors is available to assist and co-operate with members of the Directorate in conducting its investigations”. The Hawks therefore in effect also has prosecutors helping it to investigate so-called priority crimes – the very evil the politicians told us had to be addressed by the creation of the Hawks.

This suggests that the politicians were lying when they assured us they were animated by high principle when they abolished the Scorpions. Nothing new there, you might say. After all, a former Premier of Mpumalanga once admitted (rather candidly) that politicians always lied, so we should not be surprised when the assurances given by politicians turn out not to be true.

Second, the argument was advanced that the Scorpions had become a law unto itself and had been abused by politicians who used the Scorpions to target some but not other politicians. President Mbeki, so the argument went, used the Scorpions to target Jacob Zuma, but this was unfair because many politicians had done corrupt things but only a few like Zuma were targeted by the Scorpions.

Politicians pointed to the illegally obtained (and perhaps illegally made) recordings of telephone conversations (intercepted by who knows whom) which purported to show that discussions were held about the best political timing to charge then Mr Jacob Zuma with fraud and corruption, to back up this argument that the Scorpions had been abused to eliminate Jacob Zuma from the race for the Presidency of the ANC.

I, for one, thought this argument might well have some merit. Because the National Director of Public Prosecutions (NDPP) is appointed by the President and because the NDPP also appointed the head of the Scorpions, questions could legitimately be raised about the independence of the person who headed the Scorpions and the NPA. Given the fact that the then President was involved in a rather dirty war with his deputy in the ANC for the top job of ANC President, and because the Scorpions selectively investigated and prosecuted corruption amongst politicians and well-connected South Africans, reasonable people could easily have concluded that the Scorpions were being manipulated by President Mbeki to achieve his personal political ambitions.

In fact, a judge of the High Court found as much, which led to the firing of Mbeki as President of the country. Although this judgment was rightly overturned on appeal, the fact that a judge of the High Court could make a finding of political interference suggests that a reasonable person could very well come to the conclusion that the Scorpions were not independent.  

One would therefore have thought that any honest politician would have done everything he or she could to create a truly independent body to fight corruption, a body that would not be open to any political manipulation by any politician – including by the President of the country. Sadly, this is not what happened, perhaps because the new President himself had been implicated in corrupt activities. 

As the Constitutional Court  pointed out last week, instead of creating a truly independent corruption fighting unit free from any potential interference by politicians, Parliament created the Hawks which were subject BOTH to the authority of the Commissioner of Police who is appointed by the President and whose term can be renewed by the President (if the Commissioner does what is expected of him by the President) AND to a Ministerial Committee who could decide what crimes to investigate and (more importantly) what crimes could not be investigated by the Hawks.

So, to stop the alleged political abuses associated with the relatively independent Scorpions, Parliament created a body that had absolutely no independence and could very easily be manipulated by politicians (the Ministerial Committee) to target political opponents inside and outside the majority party. This demonstrates the extent of the dissembling of the ANC dominated executive and Parliament who abolished the Scorpions and created the Hawks. They pretended to fix a problem by making it much worse.

What is to be done now? What should Parliament do to comply with the Glennister judgment? What it should NOT do is to resurrect the Scorpions as that body was not a very effective corruption busting institution at all.

Defenders of the Scorpions often argue that it was a successful and laudable body because it won more than 90% of the cases it brought to court. I am not so sure I share this benign view of the Scorpions. When one evaluates the effectiveness of a corruption fighting body one should look beyond its success rate in prosecuting those criminals it had decided to go after. Instead one must ask whether it had investigated and prosecuted all credible allegations of corruption with equal vigour and determination.

Clearly the Scorpions did not do this. Although the Scorpions went after Deputy President Jacob Zuma with admirable determination (and rightly so, given the fact that his financial advisor was later convicted of bribing him), it failed to pursue many other credible allegations of corruption, including allegations – never directly denied – that then President Thabo Mbeki had solicited arms deal bribes to pay for the ANC 1999 election campaign. Chippy Shaik, who was fingered in the JIP report and is widely believed to have benefited unlawfully from the arms deal was also not pursued. Allegations of corruption against other high ranking ANC leaders were never pursued or were dropped by the NPA for reasons that seem unclear.

What is required is the establishment of a completely independent body to investigate and lead prosecutions regarding corruption – regardless of whether the person involved is a police constable in Pofadder or the President of the country. Such a body would only be able to do this task properly if its head was NOT appointed by the President but was instead appointed by a two thirds or even 75% majority of members of the National Assembly. The head of this body would also need to have the power to appoint his or her own staff free from interference and political pressure.

The head of such a body should be accountable to Parliament but should be protected from interference by Parliament or the Executive. This means that the body should be empowered to decide for itself what cases to investigate and how to investigate them. The body should have broad search and seizure powers and other investigative powers and should be well financed and staffed so that it could pursue every complaint of corruption lodged with it by members of the public.

In the absence of such a body, we will not win the fight against corruption. At present the perception is that if one is politically well-connected one is protected from investigation and prosecution for corruption. The perception is that whether one is a Brett Kebble or a Jacob Zuma, a Julius Malema or a Gupta, one would never now be investigated and prosecuted for corruption – even if one had engaged in corrupt activities.

This perception may be wrong. Some or all of those mentioned above might not have been involved in corruption at all. But as the Constitutional Court found last week, a corruption fighting unit will only be independent if it is perceived to be independent. As long as ordinary people have the perception that some of our citizens are above the law and that a corruption fighting body would never investigate them, that would not be the case.

In any case, at present whenever a politician or well-connected individual is arrested for corruption, the first thing he or she usually says is that the arrest formed part of a “political conspiracy”. Although claims of such a political conspiracy is almost always laughable and usually means nothing more than that the person is guilty as sin, such claims have traction exactly because we do not have a truly independent body investigating corruption. And until we have a truly independent body to fight corruption they might even have some reason to believe the nonsense about political conspiracies.

Hence, the Scorpions were abolished and a new unit — the Hawks – were created to investigate “priority crimes”. But yesterday in the judgment of Glenister v President of the Republic of South Africa and Others a majority of judges of the Constitutional Court (in a brave and brilliant judgment authored by Deputy Chief Justice Dikgang Moseneke and Justice Edwin Cameron), found that the Hawks were not sufficiently independent and that the state had therefore failed to fulfil its obligations to respect, protect, promote and fulfil the rights in the Bill of Rights as required by section 7(2) of the Constitution.

Both the majority and minority judgments emphasised the importance of fighting corruption and the need to establish a body that was sufficiently protected from political interference to do so. The minority held that the Hawks were sufficiently protected from such interference as it seemed to assume that politicians would not interfere with the Hawks (a rather surprising assumption given the allegations of interference with the far more independent Scorpions and given the interference by the intelligence services in the work of the Scorpions) and because there were sufficient checks and balances in the legislation to ensure that it would not be ”subject to undue influence” by politicians.

The majority took a far more robust approach to what was needed effectively to fight the corruption that seems to be engulfing South Africa like a tsunami. The ANC government might be tempted to try and tweak the Hawks legislation without really changing anything in order to comply with the judgment, but in my opinion the approach taken by the majority would doom any attempt merely to make some cosmetic changes to the structure of the Hawks. For the majority the starting point was the evil of corruption and the need to provide effective mechanisms to deal with it wherever it may be found:

There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project. It fuels maladministration and public fraudulence and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.

Quoting from a speech by Kofi Anan, the majority also noted that corruption hurts the poor disproportionately by diverting funds intended for development and by undermining a government’s ability to provide basic services. Corruption thus perpetuates inequality (put that in your pipe and smoke it, Jimmy Manyi).

If one understood that section 7(2) of the Constitution requires the state to “respect, protect, promote and fulfil the rights in the Bill of Rights”, it becomes clear that the failure on the part of the state to create a sufficiently independent anti-corruption entity infringes on the rights to equality, human dignity, freedom, security of the person, administrative justice and socio-economic rights — including the rights to education, housing, and health. Corruption was therefore an assault on the poor and on those who have suffered from discrimination in the past.

What was therefore required was to create an anti-corruption unit with the necessary independence to be protected from potential political pressure. Although there are many ways in which the state can fulfil this constitutional duty, if the state fails to create a truly independent corruption fighting body it would be in breach of its Constitutional duties.

This is strong stuff. But it gets even better. What are the requirements for such an independent body?

First, the majority indicated that the appearance or perception of independence plays an important role in evaluating whether a corruption fighting body was truly independent. This meant that the state could not create a body that it claimed was independent but that did not appear independent to the reasonable member of the public:

[P]ublic confidence in mechanisms that are designed to secure independence is indispensable. Whether a reasonably informed and reasonable member of the public will have confidence in an entity‘s autonomy-protecting features is important to determining whether it has the requisite degree of independence. Hence, if Parliament fails to create an institution that appears from the reasonable standpoint of the public to be independent, it has failed to meet one of the objective benchmarks for independence. This is because public confidence that an institution is independent is a component of, or is constitutive of, its independence.

Second, in a passage that may have consequences for our understanding of the appropriate relationship between the Minister of Justice and the NPA, the majority stated that the Constitution‘s requirement that a politician must be responsible for policing does not require that the anti-corruption unit must itself function under political oversight. This did not mean that such a body had to be insulated from political accountability. But it did mean that such a body had to be insulated from “a degree of management by political actors that threatens imminently to stifle the independent functioning and operations of the unit”.

Third, the Hawks are now “ordinary” police officials who enjoyed little if any special job security — a requirement for any truly independent corruption fighting unit. The majority pointed out that the Hawks at present can be fired by the Commissioner of Police for any number of reasons and that it appears as if he can also fire the head of the Hawks.

Although the majority does not say this, the lack of independence of the Hawks due to this provision is highlighted by the fact that our present Police Commissioner has recently been found to have acted in an unlawful manner relating to a highly problematic lease entered into to rent new Police Headquarters. If the Hawks were to investigate any possible corruption relating to this deal, the Commissioner would, in effect, be able to fire those responsible for the investigation for any of a number of reasons not officially related to the investigation.

But even if the National Commissioner of Police were not involved there could be problems with his power to fire members of the Hawks. The majority pointed out that unlike the National Director Public Prosecutions (NDPP) — who selected the head of the Scorpions from amongst the Deputy NDPPs –  the Police Commissioner can be re-appointed by the President at the end of his term. As the majority pointed out, a renewable term of office heightens the risk that the Police Commissioner may be vulnerable to political and other pressures. In theory the President could therefore place pressure on the Police Commissioner to fire those Hawks who dared to investigate allegations of corruption against — say — the Guptas or — say —  against the President himself.

But for the majority the gravest problem with the Hawks arises from the fact that the new entity‘s activities must be coordinated by Cabinet. The statute provides that a Ministerial Committee, which must include at least the Ministers for Police, Finance, Home Affairs, Intelligence and Justice may determine policy guidelines in respect of the functioning of the Hawks as well as for the selection of national priority offences. The Hawks is therefore not explicitly a corruption fighting unit. It is a unit that fights “priority crimes” and the politicians could decide what these “priority crimes” should be. This creates a risk of political and executive influence over the Hawks. As the majority pointed out:

It is true that the policy guidelines the Ministerial Committee may issue could be broad and thus harmless. But they might not be broad and harmless. Nothing in the statute requires that they be. Indeed, the power of the Ministerial Committee to determine guidelines appears to be untrammelled. The guidelines could, thus, specify categories of offences that it is not appropriate for the DPCI [the Hawks] to investigate — or, conceivably, categories of political office-bearers whom the DPCI is prohibited from investigating.

In other words, at present politicians can in effect decide what crimes the Hawks must investigate and, by implication, what crimes it should stay away from. This line of reasoning makes sense. If a President or other members of the executive are corrupt and wishes to avoid criminal sanction, these provisions would help them to do so. Although parliament is supposed to have some oversight function over this function, the President – as leader of the majority party — have indirect control over the majority of members of Parliament and hence could potentially ensure that no oversight takes place. If this ever happened this would completely subvert the corruption fighting ability of the Hawks – at least as it relates to politically connected individuals and institutions.

The majority made clear that it was not assuming that these powers would be abused by any politician. But where politicians are given powers over a corruption fighting unit that can be abused, that body does not have the requisite independence to make it effective.

From the above it must be clear that it is going to be difficult for the executive and Parliament to comply with the judgment by merely tweaking the existing legislation. A completely new institution with far more safeguards to secure its independence will have to be created. Of course, even such a body will only be as good as the people appointed to it. The professional naysayers will argue that such a body will never be truly independent because fundamentally dishonest or corrupt people will be appointed to it to protect the ANC.

I would disagree with such a pessimistic assesment.

Where a body’s independence is secured and where the body is protected from political interference, those who work for that body often grow in confidence and often begin to embody the values of that body. The pride and respect that comes with such a position often assists an individual to act in a manner not expected by those who might have appointed the person.

I recall the words of an apartheid era Minister of Justice who at that time appointed South Africa’s judges and who complained that “the problem with these judges is that once appointed they think they have been appointed on merit and start thinking for themselves”. Hopefully the members of an independent corruption fighting body will have the integrity to follow this route.

Meanwhile the ball is back in the ANC government’s court. Only time will tell whether it will try to circumvent the judgment with cosmetic changes to the existing legislation or whether it has also realised that corruption — whether committed by an ANC leader, a white businessman or someone who has donated pots of money to the governing party — disproportionally disadvantages the poor and will, if not checked, fatally undermine the credibility and legitimacy of the ANC government.

The hullaballoo about President Jacob Zuma’s remarks that ANC voters will go to heaven while opposition voters is choosing “that man who carries a fork … who cooks peoples” is a case in point. Given the fact that Christian religion teaches (rather strangely) that marriage is exclusively between one man and one woman and that sex is a holy expression of God’s love which must only occur within a monogamous marriage, and warns individuals against severe punishment and even banishment from heaven if they transgress these rules, our President’s remarks seem rather ironic.

If one takes this kind of thing seriously (I don’t, but many devout Christians do), one might argue that due to his rather adventurous private life our President is uniquely unqualified to speak on matters of religion. After all, in his private life President Zuma breaks many of the rules which Christianity takes rather seriously. Yet, that has not stopped our President from playing God and from declaring that only ANC members will go to heaven while opposition voters will go to hell.

Perhaps because I am not a religious person and because I do not take these beliefs too seriously, I am more amused than outraged by the President’s remarks. In terms of religious doctrine, one of the biggest “sinners” (once again, not a term I would ever use without irony) in South Africa is implying that he has a direct line to God and is telling us that he knows who will get into heaven and who will go to hell and is doing so with a straight face — despite the fact that concepts like heaven and hell are about as easy to believe in as the promises of Johannesburg mayor Amos Masondo that the billing problems of that city will be sorted out soon.

I am struck by the irony of all of this. The sheer chutzpa of President Zuma is also admirable.  Besides, I am not sure why opposition politicians and newspaper editors are complaining so much about this bizarre statement by our President. There is a long and proud tradition across the world of politicians using and abusing religion in the most blatant and crude manner to try and win a few votes. Anyone who has ever followed an election campaign in the USA would know what I mean. President Zuma’s statement reminds me of Sarah Palin, who also seem to believe that she has a special knowledge of God who, after all, is a Republican.

News that Police Minster Nathi Mthethwa has approached the Constitutional Court to overturn a Supreme Court of Appeal (SCA) decision that requires an offence under investigation to be mentioned in a search warrant for a warrant issued in terms of the Criminal Procedure Act to be valid, also highlights the bizarre change in attitude of the Zuma inner circle to criminal procedure questions.

Apparently the Ministry fears that the criminal justice system will be thrown into turmoil if the Constitutional Court does not, in effect, reverse its decision in a case in which President Zuma himself was a litigant. If one required the offence to be mentioned in a search warrant, so the argument goes, vast numbers of search warrants may be declared invalid. How could one possible pursue criminals if the law was so demanding and required law enforcement officials to be so precise and accurate when they applied for search warrants?

In his written arguments before the Constitutional Court, the Minister argues that the failure to specify an offence only applies in the National Prosecuting Authority (NPA) Act and does not cover warrants issued under the Criminal Procedure Act.

Of course, the irony here is that President Jacob Zuma held a very different view about the precision of search warrants when he was a criminal defendant and not the President. When Zuma was fighting to stay out of jail so that he would not suddenly have to ”fall terminally ill” to escape a prison sentence after being convicted of corruption, his legal representative challenged the lawfulness of search warrants issued by the NPA to gather evidence at Zuma’s home as well as at his attorney’s office because, so it was argued, these warrants were too vague and because they therefore fundamentally infringed on his rights.

The majority of the Constitutional Court in the famous case of Thint (Pty) Ltd v NDPP; Zuma v NDPP ruled that a warrant issued in terms of the NPA Act should state at least the following, “in a manner that is reasonably intelligible without recourse to external sources of information”:

The statutory provision in terms whereof it is issued; to whom it is addressed; the powers it confers upon the addressee; the suspected offences that are under investigation; the premises to be searched; and the classes of items that are reasonably suspected to be on or in that premises. It may therefore be said that the warrant should itself define the scope of the investigation and authorised search in a reasonably intelligible manner.

Despite these rather stringent rules (some have argued that the Constitutional Court’s requirements for a valid search warrant set the bar too high, given the lack of training and general bumbling of some of our law enforcement personnel), the majority of judges of the Constitutional Court found that the search warrants were valid. Supporters of Mr Zuma argued that the Constitutional Court judges  — you know those men and women who were described as counter-revolutionaries for not finding in favour of Mr Zuma – ruled in the way they did because they hated Zuma and may have been part of a conspiracy. No one asked whether it would throw the entire criminal justice system in turmoil if the Court found in favour of Zuma and demanded extreme precision in the formulation of search warrants. Instead they argued that his human rights were grossly infringed because the search warrants were vague (although they did stipulate the offences under investigation).

Now that the SCA has confirmed that the strict rules regarding search warrants did not only apply to search warrants issued in terms of NPA Act but also in terms of the Criminal Procedure Act (and of course, now that President Zuma does not have to worry about search warrants anymore) his government is taking a position that is diametrically opposed to that taken by Zuma when he was a criminal defendant.

You see for our government, one set of principles should apply when the police or NPA deals with “ordinary” criminal cases and an entirely different set of principles should apply when they deal with a criminal case relating to a leader of the majority party. The greatest irony is of course that Minister Mthethwa’s stance might find favour with many of the people who previously believed that Mr Zuma’s rights were being violated in a grossly unfair manner. Given the fact that many police officers are poorly trained and that the Police Service (constitutionally it remains a Police Service so I refuse to call it a Police Force) have bungled many search and seizure warrants, and given the high crime rate, many people (but not me) would argue that the requirements for search warrants should be relaxed.

I am of course not saying that Mr Zuma and his lawyers should not have made the arguments he did. These were good arguments to make to try and prevent the NPA from using the hundreds of thousands of documents seized at his home in their relentless (but not very well-executed) pursuit of the President to be. Those documents might have implicated Mr Zuma and might have made a conviction more likely so it was imperative to keep them out of court. But it does go to show that one’s views can change rather dramatically once one stops being a criminal defendant and one becomes the President of the government who has promised voters that the government would do something about crime.

What I am wondering about is whether President Zuma expressed any view on this appeal when it was discussed at cabinet and if so, what he might have said. Did he continue arguing that vague search and seizure warrants grossly infringed on the rights of criminal defendants or did he change his position? Sadly because of cabinet confidentiality, we will never know.

But no, some of our politicians seem to think that we live in a country where so called “insult laws” protect their exulted dignity — as is the case in many authoritarian states across the world — and that they should therefore be able to rely on our courts to protect them from insults and ridicule.

The latest politician (sometimes masquerading as a stand-up comedian) who has jumped on the bandwagon is Minority Front leader Amichand Rajbansi – also affectionately known as the Bengal Tiger – who has vowed to push ahead with criminal charges against an ANC leader who he said called him a “stooge”.

According to news reports Mr Rajbansi laid a charge of crimen iniuria against “a certain ANC member who called me a stooge. I will continue with the charges if the leader does not apologise publicly.” The charge of crimen iniuria against Chatsworth Youth Centre co-coordinator Clive Pillay stems from a remark Pillay allegedly made in October last year at an Indian cultural event in Chatsworth which they both attended. Said Rajbansi:

I cannot tolerate an insult from him. In court the issue was left for mediation between the two parties and no court date was set.

The report is unclear about whether the state has decided to proceed with the prosecution of Mr Pillay. If a prosecutor has indeed decided to proceed with this case, this would be rather surprising. Maybe Mr Rajbansi is just being over-exuberant and has told the journalist something that might strictly speaking not be entirely correct.

Now, Mr Rajbansi has been called many things in his “colourful” political career. Being called a stooge is just the last in a long line of insults he has had to endure — and by no means the most damaging. Why, some cruel journalist has even alleged that his mop of black hair is not his own, but in fact a toupee. In any case, it remains a bit of a mystery why he is now pursuing completely fruitless crimen iniuria charges against someone we have never heard of. He has had to suffer far worse “affronts” to his dignity in the past.

My favourite story about him (which is probably not true, but still funny) relates to his days as a politician in the “House of Delegates”, one of the three houses of the so called tricameral Parliament. (Those were the days when the ANC still opposed any co-operation with “stooges” like Mr Rajbansi who worked within the apartheid political system — long before they made Martinus van Schalkwyk a Minister in the cabinet, invited former homeland politicians to join the ANC and even co-operated with Mr Rajbansi in the Kwa-Zulu/Natal Legislature.)

Mr Rajbansi was a serial floor-crosser and was infamous for jumping from one political party to the other. When rumours started spreading that he was about to cross the floor again, a journalist asked him whether this was indeed true and whether he was going to change parties again. To which he allegedly responded: “Well, I will double-cross that bridge when I get there.”

In any case, this crimen iniuria charge is not going to stick. Yes, the crime of crimen iniuria does exist in South African law. As I have explained before, traditionally, the crime has been defined as one where a person intentionally and unlawfully impairs the dignity of another person. This means that where someone intentionally subjects another person to offensive or degrading treatment, or exposes that person to ridicule or contempt to such a degree that, objectively considered in the light of prevailing norms of society, it is criminally insulting, he or she commits a crime.

Of course, the prevailing norms of society must be judged against the values and norms enshrined in the Constitution. Given the commitment in the Constitution to democratic values, political contestation, the right to vote and free and fair elections, the right to equality and freedom of expression — which includes the freedom to receive and impart ideas and views — hurling racial abuse at another person will probably constitute crimen iniuria. Shouting “Jou ma se *@%!.” at your employee might also reach the level of a crime. But saying that a certain politician is a stooge (a rather standard charge to make against any politician) is never going to be considered unlawful by our courts.

Maybe the Bengal Tiger even knows this. Surely his lawyer must have told him that the chances of a crimen iniuria charge sticking in this case is almost zero? Why would he then continue with the case? Ego, perhaps? A need for (more) publicity? Or maybe he is merely using (or is it abusing?) the legal system in an attempt to intimidate a political opponent and make that opponent think twice before insulting him again? Who knows what the motivation for such actions might be.

But it is not a healthy trend, these attempts by politicians to use the legal system to settle political scores. It requires judges or magistrates to become involved in what are essentially private squabbles between potentially powerful, politically connected, individuals. When they invariably find against the politician, he or she (or his or her supporters) will be tempted to malign the presiding officer and may allege that some political conspiracy or political bias on the part of the magistrate or judge can be blamed for the entirely predictable outcome of the case. This, in turn, would undermine public confidence in the judiciary.

President Zuma is widely underestimated in South Africa. By this I do not mean that Zuma is a competent manager or visionary leader who is going to be one of South Africa’s great President’s. On the available evidence very few people would be able to claim with a straight face that he is either a competent or a visionary President. In fact, he often gives the impression that he is completely out of his depth, that he is incapable of leading the government of a complex country like South Africa and that others like Kgalema Motlanthe and Gwede Mantashe are really doing the work and the thinking required of government while he smiles and giggles and bumbles along. (Maybe this impression is wrong, but then President Zuma is doing things in private which he seems unable to articulate in public – especially in unscripted interviews.)

No, President Zuma is underestimated as a political survivor. To this observer it seems as if almost every decision President Zuma takes — either as President of the country or President of the ANC -  is calculated to ensure the political survival of Zuma inside the ANC and as head of state. Whether it is the way he has dealt with Julius Malema or the way he is dealing with economic policy, my impression is that he takes decisions (or declines to take decisions) based not on what he thinks is best for the country but what he thinks is best for himself and by extension the ANC. (Sometimes, when we are lucky, these things even overlap.)

Maybe President Zuma has learnt the lesson of that other guy whose name we hardly remember these days (you know, that guy with the criminal ideas about HIV) and maybe this is why Zuma is focusing on keeping control of the ANC and leaving the governing of the country to more competent people. When Thabo Mbeki  lost his grip on the ANC it was not long before he was stabbed in the back and ousted as President and whitewashed out of the ANC history. All his clever, technocratic plans, counted for nothing.

(This is different from Helen Zille, who seems to take decisions because she has convinced herself that she knows everything, that she is always right and that she is saving Cape Town, the Western Cape, South Africa and the world from the stupidity and dangerous vacillation of those lilly-livered individuals who believe in the outrageous notion that the world is a complex place and that there are often two sides to a story and many nuances to an issue that makes it rather difficult — if not impossible — self-righteously to claim always to have the final answer.)

President Zuma’s appointment of Menzi Simelane as National Director of Public Prosecutions was widely seen as an attempt to protect himself from any further possible prosecution. He has also appointed his friends and buddies (of different shades of competence and honesty) to all the major positions in the security cluster. If one controls the intelligence services, the army and the police force as well as the Prosecuting Authority, one is well on one’s way to a second term as President (and a third and fourth term as well — if one wants them).

This is why the President’s new appointments to the NPA does not come as a surprise. I could not say it better than the Business Day editorial:

THE appointment by President Jacob Zuma of advocate Nomgcobo Jiba as deputy national director of public prosecutions is disturbing, but sadly also unsurprising. It follows a worrying trend in the Zuma government of appointing supplicants and allies to key positions within the security establishment.

Some of these people may surprise us by being effective so, by rights, judgment should be suspended until they have proved themselves in office. But it must be said that the omens do not look good.

Ms Jiba’s record of prosecutions in prominent cases seems light for someone who is being promoted to such a senior post. Her only notable claim to fame so far is that she was facing charges for undermining her superior at the time, senior prosecutor Gerrie Nel. The charges were dropped, as were the charges that she was apparently involved in instigating against Mr Nel.

Mr Nel was, however, shockingly arrested in 2008 in what appeared to be a bid to disrupt the investigation into former police commissioner Jackie Selebi. Ms Jiba was suspended by then acting national director of public prosecutions Mokotedi Mpshe for her part in this alleged conspiracy.

Mr Nel was responsible for successfully bringing a criminal case against Selebi. In most places in the world, anyone responsible for successfully prosecuting the former chief of police and head of Interpol would be regarded as a national hero. But Mr Nel was leapfrogged by the very person who was accused of being involved in a conspiracy to try to halt that case.

The other appointment made at the weekend was that of Nomvula “Pinky” Mokhatla to deputy national director. She too is without any notable achievements in law enforcement to her name as yet.

The political message seems clear: the African National Congress (ANC) is trying to make sure none of its senior members get to be the target of an investigation that so embarrassed the party and Mr Zuma over the past few years.

Yet the result is likely to rebound on the party, which is steadily blunting the sword of justice. Without this sword, the ANC will be without the tools to fight corruption within the party and the country, and that will ultimately degrade both.

Criticism of the NPA has not always been fair or well informed. On occasion it  has been based on the ignorance of the public (or of some politicians) about the legal issues in play. On others occasions criticism has been informed by the shameless attempts of crooks and charlatans to try and politicise the prosecuting process in order to escape prosecution for corruption and other serious crimes. Who will forget that Brett Kebble and some of his associates had argued that he was being pursued because he was a victim of a political conspiracy against him?

But the NPA has not always acted in a way that instils confidence in its independence and impartiality. There is no doubt that the manner in which the NPA handled the Zuma case — first declining to prosecute him despite claiming that there was a prima facie case against him and then timing its eventual decision to prosecuting him in a manner that appeared to have been influenced by political considerations — tainted the credibility of the NPA.

Apart from the Schabir Shaik and Jacob Zuma cases, the NPA – along with the relevant law enforcement agencies — have also shown a worrying reluctance to deal in any credible manner with the overwhelming evidence of corruption in the arms deal. This gave the appearance that political — rather than legal — considerations played a role in decisions about arms deal investigation and prosecution.

On paper the new code of conduct addresses these concerns. It states, quite correctly, that: “the prosecutorial discretion to institute and to stop criminal proceedings should be exercised independently, in accordance with the Prosecution Policy and the Policy Directives, and be free from political, public and judicial interference”. It also requires prosecutors to “avoid participation in political or other activities which may prejudice or be perceived to prejudice their independence and impartiality”.

There are, however, two concerns that arise from this code of conduct.

First, the code states that prosecutors, when exercising their duties, must “take into consideration the public interest as distinct from media or partisan interests and concerns, however vociferously these may be presented”. On its face there is nothing controversial about this statement. Prosecutors should not be swayed by the often uninformed and even hysterical opinions expressed by politicians or members of the media.

However, in a one-party dominant democracy in which the dominant party as well as many members of the civil service and the various independent bodies such as the NPA have a tendency to conflate the party and the state, the notion of the “public interest” can be problematic. From a certain ideological perspective, the “public interest” can easily be viewed as identical to the  interest of the governing party and its leaders.

It must be impressed upon prosecutors (including the NDPP, who in the past has acted in a manner that seems to suggest that he equates the interests of the governing party with the public interest) that when they act in the public interest, they have a duty to protect the general public from criminal activity without fear, favour or prejudice. It is not their duty to protect the ruling party and its leaders in the name of “political stability” or some other vague notion of the public interest.

No matter whether a crime was committed by an individual living in Houghton or Soweto, whether the accused is the President of the country, the Police Commissioner or a homeless person, whether he or she is rich or poor, or black or white, it will almost always be in the public interest vigorously (but fairly) to prosecute the accused if sufficient evidence exist to have established a prima facie case against the accused.

The dropping of charges against Jacob Zuma – on rather spurious grounds, relying on an overturned judgment from a Hong Kong court which was shamelessly plagiarised — was clearly not in the public interest. It was also not done in conformity with the Prosecution Policy as required by the Constitution and the NPA Act. Although it was clearly in the interest of the governing party to drop charges against the soon to be elected President, it is far from clear that this was in the public interest.

The distinction between the public interest and the interest of the political party who happens to have garnered the most votes at the last election is not always easy to distinguish. Where that party is electorally dominant and where a perception has taken hold that it is in the public interest that the party continues in power, even relatively fair-minded people (like Willie Hofmeyer) who happen to be members or avid supporters of the governing party could be tempted to conflate the public interest with that of the governing party. Prosecutors should avoid this mistake at all cost. Only time will tell whether they will do so in future.

Second, no matter how independent, impartial and fair the NPA is, high profile and well-connected individuals in the private sector and powerful politicians aligned with the ANC will not be prosecuted if credible allegations against them are not vigorously investigated by the relevant law enforcement agency. However, the South African Police Service – including the Hawks – have not yet demonstrated that they will always investigate corruption and maladministration without fear or favour.

The arrest of John Block, the ANC chairperson in the Northern Cape, may be considered as a good sign in this regard. But one case does not establish a trend, so it is far too early to tell whether ANC-aligned politicians and businessmen will be investigated vigorously when the evidence suggest that this is required — even when this may not be politically acceptable to the ANC. If South Africa is to tackle the increasing problem of corruption, even politicians and businessmen who are allies of the President or of other powerful politicians must be seen not to be above the law.

When corrupt businessmen believe — rightly or wrongly — that they can “buy” insurance against investigation and prosecution by donating millions of Rand to the ANC and its Youth League (as Brett Kebble did) or by giving away fake BEE shares to family members of the President or other well-connected ANC leaders, the entire business environment will become further corrupted and this will lead to more — not less — corruption.

The NPA has a difficult task. Whenever it decides to prosecute a politician or someone connected to a politician, the accused will invariably claim that there is a political conspiracy against him or her. (This is not unique to South Africa: in the USA the Republican candidate for a Delaware Senate seat claimed that she was being targeted as part of a political conspiracy when news emerged that she was being investigated for campaign finance fraud.)

Given the manner in which the NPA had been tainted in the past, such claims will continue to have some traction. It is only when the NPA acts fearlessly and bravely and is consistently seen to act impartially and independently that such claims will be able to be dismissed with the contempt that they deserve. Until then, many well-connected shysters and crooks will continue to try and discredit the law enforcement agencies and the NPA if they dare to go after these crooks.

Given Adv. Simelane’s previous brushes with criminal conduct, his unfortunate tendency to be less than truthful and to mislead courts and other official bodies, and his rather adventurous interpretations of the law and the Constitution, it was far from clear that he was indeed a “fit and proper person” as required by the law. The DA therefore challenged the appointment of Simelane, inter alia (as some lawyers might say to demonstrate a basic knowledge of Latin), on the basis that he was not fit and proper and that he therefore did not meet the minimum requirements for the job of NDPP as stipulated by the law.

In the judgment handed down in the case of Democratic Alliance v President of the Republic of South Africa and Others in the North Gauteng High Court, acting judge PC van der Byl found that Adv. Simelane was indeed “fit and proper”. (Why an acting judge — who does not have the security of tenure of a permanent appointee — was asked to hear this politically explosive case remains a mystery.)

I believe the judgment is wrong. It is also badly argued, in as much as any argument can be discerned at all from the reasoning provided by Van der Byl AJ. (Class, although this assignment will obtain 80% for an admirable exposition of the facts, it will obtain no more than 30% for an exposition of the law and 0% for an application of the law to the relevant facts: overall mark 35%.)

Here are my reasons for disagreeing with the judgment. (Premier Helen Zille and members of the ANC Youth League in the Northern Cape might want to take notes on this demonstration of how one can legitimately criticise a decision of an independent body such as the Human Rights Commission, the NDPP or a judge without reverting to ad hominem attacks that undermine the respect for – and independence of – such institutions.)

I come to this conclusion not based on the particular personalities involved in this case, but based on what I see as a complete abdication by the court of its responsibility to enforce the minimum legal requirements that any candidate must meet before he or she can be appointed as NDPP.

The court found (correctly, in my view) that because the law does not prescribe an open and competitive process for the appointment of the NDPP, there was not sufficient evidence before the court to warrant a finding that the President acted irrationally or with an ulterior purpose, despite the President’s rather lackadaisical approach to determining whether Adv. Simelane was indeed a qualified candidate for appointment to the position of NDPP.

However, the court also rejected the contention that the President acted unlawfully by appointing the new NDPP because Adv. Simelane was in fact not fit and proper as required by the law. The argument here centred on the principle of legality, which is an integral part of the Rule of Law. Despite having a broad discretion, the President cannot appoint a person to the position of NDPP if that person does not meet the minimum requirements for a job as clearly provided for by law. If he appoints someone who does not possess the minimum requirements for the job, he acts in “excess of the power conferred on him or her by the enabling legislation” and hence acts unlawfully in contravention of the principle of legality.

The big question is therefore the following: What makes a person “fit and proper” — as required by the NPA Act – and therefore, amongst other things, appointable as the National Director of Public Prosecutions (NDPP)?

When deciding whether a person is indeed “fit and proper”, should a court accept the assurances of an appointee and the person (in this case the President, probably acting on the advice of the Minister of Justice) who appointed the NDPP that the candidate is indeed fit and proper? In other words, should the court accept the subjective assurances of a purported appointee and the President that the future conduct of the appointee will comply with the legislative requirement to act without fear or favour? Or is a court rather required to look at all the relevant facts in the public domain and make (what many lawyers would call) an independent and objective determination about the facts which existed at the time of the appointment?

If the former route is followed (as was seemingly done in this case), it would completely drain the legal requirement that the NDPP must be “fit and proper” of any practical meaning and would allow the President to appoint almost anyone with a law degree and South African citizenship — including a dishonest scoundrel — as the head of the prosecuting authority, as long as the President and the appointee assure everyone that the new appointee will indeed mend his ways and will act without fear, favour or prejudice in future.

This clearly cannot be correct.

The problem with Van der Byl AJ’s judgment is that he conflates two distinct issues. First, at the time of the appointment the NDPP must meet the minimum requirement of being a fit and proper person as required by section 9 of the NPA Act. Second, once appointed the NDPP is required, in terms of section 32 of the Act, to serve impartially and to carry out his or her duties in good faith and without fear, favour or prejudice.

Obviously a person who meets the requirement of being a fit and proper person may well be more likely to act in the way prescribed by section 32. But even if the person, once appointed, acts without fear, favour or prejudice or even where assurances are given by the new appointee and by the President that the new appointee will act in this manner, this cannot cure the initial defect that the appointee did not comply with the minimum requirements for the job prescribed by the law.

An example will illustrate my point. Imagine a law prohibits the appointment of a pedophile as a primary school teacher. In a separate section, the law also states that once appointed a primary school teacher may not molest the children in his care. If the legality of the appointment of the teacher is challenged, a court cannot argue that while the teacher was indeed a pedophile at the time of his appointment, the first requirement was met because assurances were given by the teacher (and by those who appointed him) that he would not molest any children in his care in future. Even if, eighteen months after his appointment, he had not (yet) molested any children, this will not cure the original defect in the appointment because at the time he was appointed his appointment did not meet the minimum requirements for appointment prescribed by the law.

The fundamental mistake of Van der Byl AJ is that he asks the wrong question. Instead of looking at all the evidence available to the President at the time of the appointment and asking whether the appointee was fit and proper at the time when he was appointed, he asks whether there is sufficient evidence — given the assurances of the candidate and the person who appointed him — that the appointee will in future act without fear, favour or prejudice.

Furthermore, even if one agrees with Van der Byl that the requirements of section 9 and 32 of the NPA Act must be read together, Van der Byl AJ errs by taking at face value the assurances given by the new appointee that he will indeed now act without fear favour or prejudice despite the fact that the appointee had previously claimed that the NDPP is required to take instructions from the Minister of Justice and was not independent. There is no indication at all that Van der Byl had weighed the overwhelming evidence of previous malfeasance by Adv. Simelane against the assurances that things will in future be done differently to determine whether such assurances were plausible.

It is rather astonishing that although the learned Van der Byl AJ finds that the criticism of Adv. Simelane’s conduct may well be justified; that the allegations that Simelane did not act with integrity in the past may also be justified; and that Simelane portrayed a lack of respect for the independence of the office he was appointed to in the past, he glibly states — without any explanation — that he finds himself unable to hold that Adv. Simelane was not fit and proper when appointed.

There is no analysis, no weighing of evidence, no reasoning for this decision. The reason for this, I suspect, is because Van der Byl had decided to ignore everything that had happened in the past and hence had declined to determine at all whether Adv. Simelane was indeed fit and proper as required by section 9 of the NPA Act on the day that he was appointed. Instead, Van der Byl focuses on the future and determines that given the bland assurances of future good conduct he is unable to find that Simelane was not fit and proper on the day he was appointed.

From a legal perspective, the only way in which the decision could have been found to  be lawful would have been to make a finding that there was not sufficient evidence before the court that at the time of his appointment Adv. Simelane lacked the integrity required to make him a fit and proper person for appointment.

But this Van der Byl did not do.

Indeed, he seems to suggest that there were overwhelming evidence that Adv. Simelane lacked the requisite integrity. The learned judge then takes a leap of logic (as well as a leap of faith) and seems to conclude that all the evidence of wrongdoing in the past had been wiped out by the bland assurances of the appointee and by the President that the appointee would indeed have more integrity in the future, which would enable him to act without fear, favour or prejudice as required by the Constitution and the NPA Act.

This leap of logic and of faith might turn out to be warranted. Individuals appointed to important independent positions sometimes grow a backbone and start acting in ways that surprise and delight. But it is not a leap of logic and of faith allowed by the law. If Adv. Simelane was not fit and proper on the day of his appointment, no assurances that he would become fit and proper in future could cure the inherent defect in the appointment. Unfortunately the judge did not grasp this simple fact. No wonder he failed the assignment.

PS: I would suggest that in determining whether a person is “fit and proper” the following test could be used. Would a reasonable person (someone who is aware of all the facts about the person which may be in the public domain at the time of appointment, not an overly fastidious or suspicious person, a person not blinded by particular ideological or party-political commitments) have a reasonable apprehension that the appointee lacks the requisite integrity, honesty and diligence required to do the job in accordance with his or her constitutional and legal obligations. In other words, one may ask whether the above mentioned reasonable person will justifiably be fearful that the appointment will not instill public trust in the decisions taken by the appointee.