What should one make of the report in todays Mail & Guardian that a subcommittee of the Johannesburg Bar has found there was merit in the complaint lodged against National Director of Public Prosecution (NDPP), Menzi Simelane, which alleged that he was not a fit and proper person? Simelane has now been afforded an opportunity to respond to the allegations in writing and is required to submit reasons why he should remain an advocate in good standing in light of adverse findings made against him by the Ginwala Inquiry.
Simelane was slammed by Ginwala as an unreliable and arrogant witness. His performance before the Ginwala Inquiry was up there with the performances of Glen Agliotti and Jackie Selebi during the trial of the latter. Ginwala also found Simelane may have been acting unlawfully when he drafted a letter for former justice minister, Brigitte Mabandla, instructing Pikoli to cease the investigation into Selebi until she was satisfied about the merits of the case.
A subsequent investigation into Simelane’s conduct at the inquiry by the public service commission (PSC) found he should have faced a formal hearing, but Justice Minister Jeff Radebe overruled this and recommended him to President Jacob Zuma in November last year to be appointed as Vusi Pikoli’s successor.
If the Johannesburg Bar finds that Simelane’s conduct made him unfit for membership of the Bar and he is struck off as a member of the Bar, it would in effect mean that he would have been ineligible for appointment as NDPP at the time of his appointment. Whether this would in fact happen, is of course far from clear.
Section 9(1)(a) of the NPA Act states that anyone can be appointed as NDPP who ”possess legal qualifications that would entitle him or her to practise in all courts in the Republic”. One therefore does not have to be a member of the Bar to be eligible to serve as the NDPP. One needs to have obtained the relevant legal qualification – usually an LLB – to qualify for appointment.
But section 9(1)(b) of the Act further states that one can only be appointed as NDPP if one is a “fit and proper” person. If Simelane is struck off as a member of the Bar by the High Court because he is no longer a fit and proper person, it would mean that a High Court had in effect found that Simelane does not possess the qualities specified in the law to have been legally appointed as NDPP.
At the very least, such a finding – if it is ever made – would bolster the application challenging the legality of Simelane’s appointment. If such a finding were ever to be made, Simelane would really have no other choice but to resign as NDPP. If this ever happened, it would leave very difficult legal questions unanswered as it would mean that Simelane’s appointment was unlawful when it was made. Minister Jeff Radebe and President Jacob Zuma would obviously be severely embarrassed by such a finding and questions will be asked about the motivation behind Simelane’s appointment.
And if such a finding is made, would that mean that all the decisions taken by Simelane as NDPP – including the decision to call off attempts to freeze the foreign assets of businessman Fana Hlongwane, who was allegedly a beneficiary of arms deal corruption – were null and void?
Maybe it is too early to worry about these matters. Simelane might provide the subcommittee of the Johannesburg Bar with excellent reasons why he is indeed a fit and proper person. He might argue – as he did at a public debate that I attended – that he was merely following instructions from the then Minister and the then President when he wrote the letter containing an illegal instruction and when he appeared before Ginwala and misled that Inquiry. Much like some Nazi’s after the second World War and police officers after the end of apartheid, he might argue that he was only following orders and should therefore not be blamed for what he did.
It would be interesting to see to what extent Simelane blames members of the previous administration for his troubles and what facts he will be prepared to put before the subcommittee to protect himself. Could we see some new revelations about what exactly happened after then President Thabo Mbeki decided to suspend Vusi Pikoli because he wanted to arrest Jackie Selebi?
Probably not. But this inquiry into Simelane fitness reminds us that his appointment as NDPP was one of President Jacob Zuma’s most troubling acts as head of State. Whether he is ultimately cleared or not, it is unfortunate that our NDPP, who – like Caesars wife – should really be beyond reproach, finds himself in a position where he has to answer questions about whether he is a fit and proper person as required by the law.
His previous decisions wouldn’t automatically be set aside if he found unfit and improper. The finding would, however, open the door to review. Each decision would still have to be reviewed on its merits.
It would be embarrassing for the Presidency but JZ has a knack of riding out embarrassing situations with a little chuckle and a change of subject.
Let’s face it, JZ doesn’t believe the ANC is touchable in an election so he wouldn’t actually care because the electorate will let him get away with it.
In normal “democracy”, JZ and his minister would probably have to resign but not here.
“Absolutley”
@ Prof
Are u not jumping the gun?
If what is written by RW Johnson in his book is true then I partially understand why JZ appointed Shaik, Simelane et al. He talks about how NIA, Chinese equipment and other resources were used leading to the Polokwane battle. The latest revelations in Selebis case also confirms the dog-eat-dog of the spook world. These details reduce the Mpumalamga Killings to a mere “picnic”.
He’s Royal Game, Pierre.
Gwebe, what rwj says is, of course, not true.
As Pierre has cautioned, he is “ideological.”
I wonder how many disciplinary actions or strike off applications by the General Bar Council were based on complaints by fellow colleagues – like Ellis has done with Simelane. Its so unusual and stinks so much I can smell it from here, just like many other South Africans.
The truth always has a way of showing itself.
Give the Ellis’s of this world a long rope to hang themselves – as they certainly will.
As for you De Vos – just slow down, you are running ahead of yourself.
okay kay,
you’ve had your say…now back to luthuli house with you
Prof or anyone knows where to find the Selebi judgement on line? It is not under the recent judgments of the South Gauteng High Court where it is supposed to be, or is there a reason why it is not yet in the ‘public domain’? Is there another website which hosts all SA judgments? Thanks people!
Kay is right
The way the Bar is treating Mr Simelane illustrates why the Bar is in need of transformation.
I detect distinct white tendencies behind the charges directed at Mr Simelane!
Who took the entire ‘SCA’ to some blood bar/JSC for their infamous “generally corrupt relationship” quote from the media, which Squires J had to correct later (after 18mnths unfortunately!)?…It is indeed unfortunate to see this selective justice! Adv Simelane raised the very issue of racial judgements, e.g H. Gibbs in Cape Town etc, while at the UJ early this year!….I mean, just tell me one white politician/lawyer/adv/judge that De Vos and them are obsessed with, same way they are with Hlophe,Simelane,Malema,ANC!…Its like whites cant help being racist (almost as if there is nothing they can do about it – its in their veins!)
@ Spuy…..
In each of the categories politician, lawyer, advocate and judge, please provide me with the name of one white person who is deserving of the “obsession” being visited upon Hlophe, Simelane, etc.
Spuy is right.
Like Hlophe JP, Adv Simelane is being pursued for his courageous fight against RACISM, and his unrelenting fight for TRANSFORMATION.
Many, many thanks.
@ Spuy
Then I guess I can say the following: Its like blacks cant help being corrupt (almost as if there is nothing they can do about it – its in their veins!)
or maybe not
@MDF
Quote “Gwebe, what rwj says is, of course, not true.
As Pierre has cautioned, he is “ideological.”
What facts do you have to prove that RWJ writes untruths, and what are the sources that you cite?
And why “of course”.
I have a perception (not even an opinion – I do not have enough facts at hand to form an informed opinion) that RW Johnson holds pretty extreme right wing views, as does, to a lesser extent Anthea Jeffrey).
As with all perceptions, these can be changed if proven facts indicate otherwise.
On what facts do you base your statements (or did the ancestors tell you in a dream, perhaps?)
@MDF
Quote “Like Hlophe JP, Adv Simelane is being pursued for his courageous fight against RACISM, and his unrelenting fight for TRANSFORMATION.”
Yes, that is definitely one possibility. Agreed and accepted.
There are of course others:
He could be being “pursued” because:
He has made some decisions that are not sound in law and smack of political expediency.
He was found by an ANC aligned commission (Ginwala) to be untruthfull and unstrustworthy.
His academic credientials are unimpressive.
he has practically no experience of actually practicisng law in a court room
he has not shown any evidence of being able to make impartial decisions that do not favour particular interest groups or political parties.
Now let’s look at the diffferent possibilities in the light of the facts that are in the public domain and draw our own concluions………………….
Thank you (sic)
Peter L, I take your argument (well, part thereof). But, I am sure we need not be reminded that not so long ago, in fact, just before the word cup Adv Semilane has been showing Jeff Radebe (and Jacob Zuma) that he is in charge at the NPA. Regardless of what you think of his apparent restructuring plans – he proved that he is HIS OWN MAN. In fact, last I checked he was still adamant about going ahead with his plans. He just paused so as to allow some processes could be concluded first as was requested by JZ. Point is – he stood his ground against the mighty Jeff Radebe and for that I believe he has shown to be ‘fit and proper’ to can discharge his NDPP duties without ‘fear, favour or prejudice’. I dont care what some white bar thinks.
Anton, I gues being white is pure and as such I wish I was. @Deloris, you really ‘DoLittle’ to convince me to comment on your ‘little’ counter above!
@ Spuy
I disagree. Being white does NOT equate with being “pure”. The problem is that right now I just cannot think of any white politicians, lawyers, advocates or judges deserving of being “obsessed” about in the context of this debate. It seems that you cannot do so either. How does this make me racist
@ Peter L
“On what facts do you base your statements (or did the ancestors tell you in a dream, perhaps?)”
Peter L, I implore you not to denigrate pre-colonial epistemology!
Thanks a lot.
MMmmm, I can see this is a lawyers blog, so many people avoiding answers to so many questions with so much BS…
@MDF
No denigration intended or implied, mate – I was asking you a question, which as A N Leigh has pointed out, in your usual manner, you have not answered.
A very large number of S Africans subscribe to that belief system.
The fact that you regard an association with it as being denigratory is interesting.
Ah – Epistemology – I remember studying that as part of research methodology – the only University course that I did not pass first time (got a supp!).
I recall reading about Descartes epistemology – a mate told me “You remind me of the famous graffiti about Descartes the philosopher.
He said: ‘Cogito, ergo sum, I think therefore I am’.
Someone then wrote on a wall, ‘Sum, ergo cogito, I am, therefore I think’.
But then someone else wrote underneath that: ‘You have put Descartes before the horse’.”
May be some are doing more damage than Simelane.
http://www.news24.com/SouthAfrica/News/Outrageous-magistrate-does-it-again-20100714
I greatly appreciate the ‘legal interpretations’ that PdV provides.
Obviously the more that citizens understand the law, the better for society.
I guess, like the Priests of centuries ago who wanted to keep their monopoly
to heaven’s gate, the attorneys & advocates don’t like PdV giving free
knowledge.
PdV wrote:-
> Section 9(1)(a) of the NPA Act states that anyone can be
> appointed as NDPP who “possess legal qualifications that
> would entitle him or her to practise in all courts in the
> Republic”. One therefore does not have to be a member of the
> Bar to be eligible to serve as the NDPP. One needs to have
> obtained the relevant legal qualification – usually an LLB -
> to qualify for appointment.
> But section 9(1)(b) of the Act further states that one can only
> be appointed as NDPP if one is a “fit and proper” person. If
> Simelane is struck off as a member of the Bar by the High Court
> because he is no longer a fit and proper person, it would mean
> that a High Court had in effect found that Simelane does not
> possess the qualities specified in the law to have been legally
> appointed as NDPP. ..
> …
> And if such a finding is made, would that mean that all the
> decisions taken by Simelane as NDPP – including the decision to
> call off attempts to freeze the foreign assets of businessman
> Fana Hlongwane, who was allegedly a beneficiary of arms deal
> corruption – were null and void?
Can such issues be raised in newly initiated litigation ?
Or does precription, res judicata, “should have brought the ground in the
first application” or other similar related tricks, allow it to be swept
under the carpet ? And related thereto, do such ‘tricks’ trump raising
a default judgment which was “void ab initio” ?
Where the voidness [not disputed by the magistrate] is from the council’s
failure to comply with the ordinance, when suing a with-holding property
owner, who wanted to have his false billing exposed in Court. But the
municipal council contrived a default judgment.
So does “should have been brought in first rescission application” trump
such voidness.
This is fit and proper
http://www.sowetanlive.co.za/news/2010/09/22/justice-department-in-chaos-says-a-g