Reading Minister Jeff Radebe statement in which he takes a stab at defending the indefensible “appointment” of Adv Menzi Simelane as National Director of Public Prosecutions (NDPP), I wondered whether the statement was not perhaps drafted by Ras Dumisani after partaking in the holy weed. Unfortunately the Minister’s defense is misleading in the extreme, does not address the concerns raised by the Ginwala Report, misconstrues the Ginwala Report findings and, further, misconstrues the judgment of the Supreme Court of Appeal and the Constitutional Court in order to gloss over Simelane’s obvious unfitness to hold office.
The Minister’s statement reveals that the Public Services Commission (PSC) has recommended that Adv Simelane be subjected to a disciplinary hearing because of the findings of the Ginwala Inquiry against him. The Minister has decided that this recommendations must be rejected on the basis, inter alia, that Simelane was not afforded an opportunity to give his side of the story and hence the PSC had flagrantly abused Adv Simelane’s fundamental rights to he heard.
This is, to say the least, a rather peculiar argument that displays a spectacular lack of understanding of the fundamental right to be heard. Adv Simelane would of course have been afforded the opportunity to tell his side of the story before a disciplinary hearing and his fundamental rights would have been perfectly preserved if the Minister had ordered a disciplinary hearing as recommended by the PSC. The PSC did not conduct a hearing and did not make any findings about whether Simelane is fit to hold office.
It was merely tasked to make a recommendation of whether further steps should be taken again Simelane. The Minister has obviously decided that such a disciplinary hearing would not be in the interest of Simelane because at such a hearing, chaired not by the Minister (a politician) but by a real lawyer, Ginwala’s serious findings of wrongdoing would have had to be scrutinised properly.
Minister Radebe states that the “attack on the credibility of Advocate Simelane by the Ginwala Enquiry because he had allegedly not disclosed this letter [written by him and signed by the then Minister of Justice] to the Enquiry and therefore made a misrepresentation to the Ginwala Enquiry is without any foundation as the Ginwala Enquiry was already in possession of the letter before Advocate Simelane had given evidence”.
The problem is, the Ginwala Report makes no such finding whatsoever. The Ginwala Inquiry and the PSC Report actually refer to a different letter written by President Mbeki a day earlier, which Simelane had failed to provide to the Commission. The Minister is thus “refuting” a finding that was never made and fails to address the fact that Simelane had hidden the letter written by President Mbeki to the Minister of Justice from the Inquiry.
Either the Minister and his advisers are very, very dim-witted, confusing two completely different letters or, well, or they are trying to pull the wool over our eyes by not sticking to the facts (otherwise known by us mere mortals as the truth).
We know of course that Adv Simelane lied – not once, but twice – to the Inquiry by denying that he had obtained legal advice on the relationship between the Department of Justice and the NPA and only “remembered” that he had obtained such advice when he saw Adv Wim Trengove producing the document with the legal advice. Minister Radebe’s defense?
This is a common human experience in a court of law that a witness would correct him or herself. Such a correction does not necessarily justify a conclusion that a witness was lying when he corrected himself.
Anyone who has read the transcript of the cross examination would be hard pressed to agree. In any event, it is exactly to determine whether Simelane did lie that a full disciplinary hearing was recommended by the PSC. The Minister’s use of the word “necessarily” above is telling. Minister Radebe’s view is in essence: “Well Simelane might have lied. Or he might have first forgotten about the existence of legal advice that was at the heart of his own submissions to the Inquiry before miraculously “remembering” it. In any event, it would be unfair to Simelane to determine whether he is a liar by having a disciplinary hearing.”
This view seems to be based on a reasonable apprehension that the truth has a habit of emerging at disciplinary hearings.
Ginwala was particularly scathing of Simelane because he had drafted a letter ordering Pikoli not to proceed with the arrest of Jackie Selebi. The Minister quotes selectively from the Supreme Court of Appeal case to suggest that there was nothing wrong with this letter. But Radebe’s statement is unfortunately not correct as he fails to include the very next sentence in the SCA judgment which reads:
although the Minister may not instruct the NPA to prosecute or to decline to prosecute or to terminate a pending prosecution, the Minister is entitled to be kept informed in respect of all prosecutions initiated or to be initiated which might arouse public interest or involve important aspects of legal or prosecutorial authority.
No wonder Minister Radebe has faith in Simelane. They both seem to have a tendency to make statements about the law which are not correct. Minister Radebe thus fails to address the fact that Simelane had drafted a letter instructing Pikoli not to arrest Selebi which led Ginwala to find:
The DG: Justice should have been acutely aware of the constitutional protection afforded to the NPA to conduct its work without fear, favour or prejudice. The contents of the letter were tantamount to executive interference with the prosecutorial independence of the NPA, which is recognised as a serious offence in the Act.
The selective quotation from the SCA judgement and a blithe comment that the Simelane could not be blamed for writing a letter that contained a patently illegal instruction because the Minister had signed the letter, suggests that Minister Radebe either holds the view that the SCA and the Constitutional Court are wrong about the nature of the NPA’s independence and that the executive is therefore justified in ignoring the courts, or that it is perfectly fine to appoint a person as NDPP who writes letters that is in breach of the law.
Either way, the statement by the Minister seems to confirm the view that Simelane was appointed not because he was fit and proper, but exactly BECAUSE he was not fit and proper.
Well said, Pierre. (Your only problem is that the weed part of what you have said is probably true.)
Hey Pierre – agree 100% – good commentary – but please turn off the US spell checker : “defence” not “defense”, “judgement” not “judgment” is usual in South African English.
Shame South Africa, cry the sorry country. Anyone can take us for a ride!
Brilliant Prof: One can feel your commitment to this.
Cooking on gas right now, listening to Michael Jackson, bless his soul… the song is….
“all I want to tell you…
they don’t care about us.”
So who fills their shoes, those who don’t care, for those who do?
PS: I liked the spell checker, caught me twice.
Hey Mon! The herb of Truth! … I canb hear Ras now: “Mensi my man!?, I hold you in esteem, my man!?, come and save us from … whatever!, my man!? But don’t forget the big guy’s untouchable my bro?!”
The statement by Mr. Radebe doesn’t reflect well of the Minister or his advisors. It is clear why Mr. Radebe thinks Simelane is a fit and proper person for the post of DPP: They are two of a kind.
I think the beginning of the end for Mbeki was when he tried to defend the indefensible. Are we seeing the same pattern with Zuma and his advisors?
Zapiro says it best:
http://www.mg.co.za/cartoons/27nov09xzapiro.gif
[...] Either way, the statement by the Minister seems to confirm the view that Simelane was appointed not because he was fit and proper, but exactly BECAUSE he was not fit and proper. via constitutionallyspeaking.co.za [...]
@ Pierre.
“What would you do if I sang out of tune,
Would you stand up and walk out on me?
Lend me your ears and I’ll sing you a song
And I’ll try not to sing out of key.
“Oh, I get by with a little help from my friends
Mm, I get high with a little help from my friends
Mm, gonna try with a little help from my friends”
Sounds like Simelane?
But not.
That’s Joe Cocker.
http://www.youtube.com/watch?v=8y2RHMGqbWk
the fact is simelane was not the choice of those who put the president on power, ramatlodi is a preffered choice and now the president got a chance to ut somebody with struggle cresidentials to become NDPP.
Sounds like Minister Radebe has been taking counsel from our man Hlophe on how to create your own version of the audi alteram partem rule, amongst others…
@ Pierre.
It’s curious and interesting that no one has come out in unqualified support for Simelane’s appointment.
Not even Min Radebe!
Professor, this is a very good piece. One very alarming point is that Jeff is supposed to be the Minister of constitutional development. One could be justified in believing that at the very least, he ought to enjoy a basic grasp of constitutionalism – which plainly he does not given that he (a) holds a completely wrong-headed view about the authoritative nature of judicial pronouncements and (b), is clearly prepared to countenance people who would encroach upon the NPA’s constitutionally guaranteed prosecutorial independence.
So I will side with some of the bloggers here inasmuch as if it is a little too harsh to suggest that our dear Minister should go back to law school, then maybe we can safely conclude that he has been smoking a little greenery. And as much as some may be loath to concede, Helen Zille was right: the appointment of Simelane is a classic case of cadre deployment.
Well said, Prof. But what were you expecting; Radebe is a lawyer by profession. Where I differ with you Prof, is on the emphasis you seem to be placing on what used to be Zuma’s charges. The emphasis should be on whether Menzi is a “fit and proper” person to hold that office as required by the country’s Constitution.
However, you and the opposition parties seem to think that the issue is whether Simelane will “re-drop” the charges against Zuma. That is not the way to approach this issue. Our main priority should be to defend the rule of law and, in this case, Simelane’s obvious lies and politicking reveal just what kind of a scheming little weasel he is. Try and sell that to the masses.
If, on the other hand, you decide to bring Zuma’s charges – which were dropped a long time ago – into the discussion then you risk losing the support that you seem to have been amassing lately among the different racial groups. The majority of black South Africans are very protective of Zuma and will see any attack on Zuma’s person as an attack on them. Look at what happened to Mbeki.
Leigh says:
December 1, 2009 at 7:23 am
“And as much as some may be loath to concede, Helen Zille was right: the appointment of Simelane is a classic case of cadre deployment”.
Eish!
That green stuff seems to be flowing freely.
Our politicians once again got their genitals in a knot. Is this a cultural thing (Africa, Sub-Saharan Africa, or southern African) or just plain stupidity?
Tatera, I think that this is yet another manifestation of Xhosa Nostra.
Hi Prof. I see that you are again going after Zuma, now over an appointment. I know very little of Mr Simelane except what is said about him in relation to the Ginwala commission. You have dwelled in this blog about this commission and you have come to conclusions about this man only from this instance. Because I have not yet made up my mind on this matter can you substantiate your argument with other cases where you feel Mr. Simelane was lying or showed that he is not fit to hold the position?
I have had discussions with friends of mine on this matter and the argument has been: If in the legal profession one is judged according to commission finding which have not been proved, then why do we tolerate judges and lawyers who are known to have lied or had improper conduct during the years before “freedom”. Must we take it that in 1994 these individuals became saints? What do we do? Do we relook each and every mans professional conduct and then make a decision on whether they are fit and proper to exercise their right to practice. By the way who do you recommend for the position because you seem to have someone in mind?
Two other points, what do you think about the article below in the Mail and Guardian. Do you think they are still after him for ulterior motives? Why don’t you feel the same happened to Judge Hlope? http://www.mg.co.za/article/2009-11-27-dear-judge-moseneke
Why must I as a member of the public have faith in the judiciary and legal profession when we get articles like this in the paper? http://www.citypress.co.za/Content/SouthAfrica/News/2168/48e941fdccd34f7199c071f3338600b8/29-11-2009-02-00/Lawyers_pocket_R7bn_from_RAF
Incidentally a guy I know in Stellenbosch was knocked down by a car with his girl friend in 1999. His girl friend was killed and he was in hospital for more than a year. After filling a claim with RAF, the claim took 5years to process and from a claim of 1.5million received R100 000. Everything else went to the lawyer. What kind of justice is this?
Tatera, you question whether our politicians are stupid. Presumably, it is Jeff’s freshest display of cack-handed advocacy that has caused you to consider this possibility.
With all respect to the Minister, given his defence of the appointment and that we could reasonably assume that he talked it over with some people in his department, your question, although hardly inoffensive, is certainly a fair one.
But while I think that the defence could be taken as disclosing a bit of stupidity, I think the better view is that the ANC currently enjoys such smug certitude that its figures believe they can get away with anything. Sadly, this deeply unfortunate opinion is quite plausible.
But to say a bit more about Jeff specifically and the view that after doing the apparently necessary thing of touching base at the nearest law faculty for a few touch ups, he might want to see about talking to a good priest: within five months Jeff has (a) endorsed the JSC majority view and (b), come out with the sort of support for Simelane that pretty much gives away the case to the general body of detractors. That is, in addition to making a habit of getting the law wrong, he is apparently not the most upstanding of characters.
Good analysis Prof.
Chris, I cannot agree more with you. But I cannot blame Zuma’s advisors in this regard. Like I have said before, the fish rots from the head. Doing good things the right way is an exception to the JZ admin and the opposite is a norm. Personally I did not expect much from it and I do not put much value to some of the things regarded good about JZ and his admin because those are not the things through which I expect him and his admin to demonstrate that we are all equal before the law and that we shall all indeed share into the wealth of this country.
By the good things I refer to the good talk or talking of good things that people want to hear he has so far mastered e.g. tough talk against corruption, service delivery, dismissal of poor performing civil servants, job creation, fight against aids and crime, respect for the independence of judiciary and the supremacy of the constitution e.t.c. Good thinking people know that this talk has not been appropriately put into action. Wherever it happened it has been selective and never dealt with the core issues and people involved which demonstrate that under his presidency and administration (a) we are not equal before the law and (b) that by this populist talk he is just actually pulling the wool on our eyes while graft, personal aggrandizement, criminality and lawlessness continue unabated. For instance on (a) corruption – why is he blocking his own prosecution and that of the horrible members of the parliament involved in travelgate, why not act against the Mpumalanga Premier on the tender rigging he and his ex-fiancée are said to have been involved in? (b) crime and lawlessness – why did he, the ANC and his legal team cook the illegal dropping of his charges, why not investigate is NIA members like Fraser who were involved in the illegal interception of tele/cellphone conversation of members of the previous administration for his undue and illegal benefit, why did he through Jeff Radebe cooked the dropping of charges against Hlophe, why continue appointing Simelane in the most important position of the DPP which is in the face of all the evidence for his (i) disrespect of the constitution and the constitutional court (ii)lying under oath and (iii) being not `fit and proper’ person to hold such a position as the NPA Act requires demonstrated during the Ginwala Commission?
Based on the above and other similar examples not cited above, one can safely conclude that JZ’s administration has other hidden objectives other than serving the SA public which are (a)to avoid his own prosecution (b) discredit Mbeki (c) priorities the needs of and reward those who campaigned for him to achieve A above who are also game to achieving B above at all cost, and (c) to achieve over the next 10 years his wish to be seen as another Mandela in SA and the world. And ARROGANCE and USING POLITICAL POWER AS A CARTEL to punish and starve the wise ones as opposed to fair and democratic engagement is their tool.
Thomas says:
December 1, 2009 at 8:28 am
The Ginwala Commission findings resulted in dismissing Pikoli.
For that it had to be impeccable.
It cannot be sensibly argued that only those portions that related to Pikoli was accurate while those aspects that related to Simelane were not!
FYI Prof, Prof Unterhalter was the advisor to the minister on Adv Simelane issue. I guess he also smoked the holy herb except you. I thought you would learn not to call people names after calling the president a gangster.
Musa, let us wait for a statement from Unterhalter SC before we opine that he participated in the dope smoking. For a start, if his comments thus far are anything to go by, Jeff might have smoked David’s share (yes, Jeff, puff, puff, PASS). And secondly, the Minister does tend to draw on sources selectively.
I, for one, think that Unterhalter is a very impressive lawyer. So while I could be wrong, I do get the impression that Radebe’s treatment of Unterhalter’s views may sound quite different coming from David himself.
The Prof is justified in assuming that the speech was written by Ras Dumisani. How else can you justify such utter trash.
Radebe seems to be blaming everyone else but Simelane; the PSC, Ginwala, Pikoli and his mother, blah blah blah… but somehow conveniently forgets that he (Radebe) was responsible for not affording Simelane a proper platform to answer to those charges. And he seems to think that because he refused to give Simelane the platform, then Simelane should be appointed. We say no. We have to discuss Simelane’s fitness no matter what, even if it means we demand a 100 push-ups from him.
Ras blamed the microphone, the words, acoustics etc. But, you see, Ras was high. What’s Radebe’s excuse?
Maggs Naidu says:
December 1, 2009 at 8:54 am
The Ginwala Commission findings resulted in dismissing Pikoli.
For that it had to be impeccable.
It cannot be sensibly argued that only those portions that related to Pikoli was accurate while those aspects that related to Simelane were not!
————————————————————–
Was the commission about Mr. Simelane?
Leigh my issue is the ease at which we label people we don’t agree with. No one has proof of Minister Hadebe smoking a whole herb. To even associate him to Ras Dumisani is despecable by the Prof.
Also note that over the weekend the PSC acknowledged that they ignored the representations made by Adv Simelane to the minister, which the minister forwarded to them. Had they read his representation, they probably would have come to a different conclusion.
Thomas says:
December 1, 2009 at 10:10 am
Maggs Naidu says:
December 1, 2009 at 8:54 am
The Ginwala Commission findings resulted in dismissing Pikoli.
For that it had to be impeccable.
It cannot be sensibly argued that only those portions that related to Pikoli was accurate while those aspects that related to Simelane were not!
————————————————————–
Was the commission about Mr. Simelane?
—————————————————————————————————–
No.
Prof, your past articles have always referred to the letter Adv Simelane drafted for Minister Mabandla. You and many here crucified him on those basis. Suddenly when there is evidence that the letter was submitted to the commission, you change tact. See your topic “Neither fit or proper” just below the quote of Frene Ginwala.
Musa, you have failed to grasp the two different issues. I have never taken Adv Simelane to task for hiding the Mbandla letter and have never claimed such. I have stated that the CONTENT of the letter is objectionable as it contains a blatantly illegal instruction. I hope that clarifies things for you.
Musa, let me put forward five related points here. In the first place, I do not think that anyone seriously believes that the Minister smoked pot. Secondly, the reference to weed smoking was meant to convey an opinion – which, incidently, is shared by many – about the quality of the Minister’s reasoning in defence of Simelane. Thirdly, when the Professor pens his pieces, he does argue – and he typically does so very well. But he also tries (with regular success) to be engaging and entertaining and that is a well-conceived object insofar as it fosters readership beyond the sphere of lawyers and political analysts. Fourthly, Minister Radebe is a prominent public figure who, if he has taken the measure of his job, would expect to be the subject matter of a few light-hearted remarks. Finally, as one of our fellow bloggers pointed out in another discussion, the fact that ANC supporters take issue with a few fairly humorous comments about ANC figures is clearly indicative of the hypocrisy of many an ANC proponent. The ANCYL has said far worse and for far less in the way of cause. Here you take issue with an innocuous comment. And this to me seems similar to the Presidency’s decision to take issue with the Professor’s choice of words in a different but related context.
So in short, Radebe was not labelled here and in my view, the Professor has done nothing despicable.
On a separate but related note, it seems one could fairly argue that many ANC figures and proponents are at once over-sensitive bullies and proper cowards. Not one of them could match the personal courage that the Professor demonstrates daily.
Menzi has been appointed to make sure that Zuma does not get prosecuted (the same reason Mbeki was recalled from office) and also to make sure other cadres don’t have to face justice for breaking the law no matter how corrupt they may be.
Finish and klaar.
Musa my friend, you seem to be having problems in understanding issues, the context in which they are argued and their analysis – in this case the context in which Prof refers to the herb and the letter. I cannot agree more with Prof himself in his response to your conclusions based on this misunderstanding as well as Leigh’s detailed response in this regard.
@ Thomas
Thanks for the link containing the letter to DCJ Moseneke. I am still waiting for his direct involvement in any of the shady deals mentioned in the letter. So far he is only being crucified for belonging to the Moseneke family or for the fact that the Meseneke family has a family trust…