Constitutional Hill

Why Simelane was never appointed and cannot be dismissed

When a court declares an appointment invalid, it is as if there was no appointment to start with. Why, then, do we read in the papers about the “reluctance” of President Jacob Zuma to announce Mr. Menzi Simelane’s “dismissal” as National Director of Public Prosecutions (NDPP)? And why is there talk of a golden handshake for Simelane?

It is unclear whether news reports are true that Menzi Simelane has been “quietly removed from the National Prosecuting Authority”, but that negotiations are still under way about the termination of Simelane’s employment contract. It is also unclear whether Simelane will be paid “millions of rand” to terminate his contract, as speculated in the media.

We do know that Justice Department spokesman, Mthunzi Mhaga said: “Simelane’s contractual issue is being addressed. Processes are currently under way to bring it to finality.” These comments are perplexing, to say the least. Given the fact that there was no valid contract to start with, it is unclear what contractual issues there could possibly be to sort out.

Earlier this year the Constitutional Court found that the decision by President Jacob Zuma to appoint Menzi Simelane as NDPP was irrational and hence invalid. The Court explicitly rejected the contention by the Minister of Justice that Mr Simelane should stay in office and that the matter should be referred back to the President for reconsideration.

The Court affirmed that its decision had retrospective effect and that Mr Simelane was therefore never legally appointed as NDPP. If the Constitutional Court had not explicitly mitigated the potential disruptive effects of this declaration of invalidity by ruling that all decisions taken by Simelane would not be invalid merely because his appointment was invalid, it would have been as if he had never set foot in his offices as head of the Prosecuting Authority. It would have been as if Mr Gupta or Shaik had made all decision as if they were the NDPP (one assumes, of course, that they have not done so), despite having no authority to do so.

But somehow the bright sparks at the Department of Justice seem to think they can ignore the decision of the Constitutional Court and can revive an invalid appointment by invoking an underlying contract entered into when the President unlawfully appointed Simelane as NDPP. But surely, where the original appointment was illegal and invalid, no valid employment contract arose?

As with all contracts in our law, parties cannot enter into illegal contracts of employment. In Georgieva Deyanova vs Craighall Spar an employee could not demonstrate to an employer that she had the legal right to be employed in South Africa.  The employer informed the applicant that it could not employ her because of her failure to provide proof of her legal status. The employee approached the CCMA, claiming that she had been unfairly dismissed. In line with three other decisions, the commissioner found the CCMA did not have jurisdiction as the contract of employment was void ab initio (to be treated as invalid from the outset.

Similarly, Simelane’s employment as NDPP was declared void ab initio by the Constitutional Court, and there is no contract to negotiate about and no right to any golden handshake flowing from a contract that does not exist. Any payment made to Mr Simelane would therefore be unlawful and tantamount to corruption.

To hold otherwise would be legally wrong and would lead to absurd consequences. As an example, imagine a local hospital appoints Mr. X as a heart surgeon. They never actually checked whether he is a heart surgeon and it transpires that he is a motor mechanic who merely pretended to be a heart surgeon. The original appointment would be invalid (no motor mechanic can legally do open heart surgery) and no court is going to find that Mr. X has a claim for a golden handshake because his invalid appointment has now been discovered. This would be even more true if the Constitutional Court had found that the original appointment was unlawful and invalid.

There is another reason why this must be the only possible interpretation of the Constitutional Court judgment. If the appointment was not invalid from the outset and if Simelane was somehow still considered to be employed by the state – despite an explicit ruling by the highest court in the land that he was not so employed – then the President would not be legally able to terminate his contract and dismiss him either.

This is because section 12 of the National Prosecuting Authority Act states that the NDPP can only be removed from office after an enquiry into his fitness to hold office was instituted by the President, and then only once the enquiry had concluded that he should be dismissed. Moreover the removal of the NDPP can only be formalised once the President has accepted the recommendations of the enquiry he instituted and after this was confirmed by the National Assembly.

None of this has happened, and with good reason. As the original appointment was invalid from the start and as no valid employment contract came into existence, it is impossible to dismiss Simelane. One cannot dismiss someone who was never legally appointed.

Mr. Simelane was never validly employed as NDPP. The Constitutional Court confirmed this. Giving him a golden handshake would be almost as scandalous as his orginal appointment as NDPP.

  • Maggs Naidu – Yikes, another seven years!

    “As with all contracts in our law, parties cannot enter into illegal contracts of employment.”

    That surely opens the way for all manner of worker abuse of illegal immigrants.

  • khosi

    “It would have been as if Mr Gupta or Shaik had made all decision as if they were the NDPP (one assumes, of course, that they have not done so), despite having no authority to do so.”

    Pierre, you can be such a bitch… sometimes!

    Tempestuously accurate piece of writing.

  • zola

    But Prof your contention cannot be sustained in the light of several Labour Court and Labour Appeal decisions that hold that the invalidity or of the contract of employment, for unlawfulness does not deprive an employee his right to fair labour practices, which have been described by the constitutionaly inspired LRA as including the right not to be unfairly dismissed! Kylie v CCMA is an example of that conclusion by LAC!so it does not follow that the invalidity of the contract, excuses the DOJ from affording Simelane due process when he exits! Whether his examounts to a(n) (unfair) dismissal is a mute point! Unfortunatelly in line with our constutional scheme, Simelane must benefit from provisions aimed at protrecting vulnerable employees!

  • Gwebecimele

    Surely Simelane will score a few more paychecks, needless to say he did not hire himself. It seems as if the employer will terminate the employment but for a reason different from the one of the courts. That must be negotiated with him.
    Alternatively there can be another court case where he takes the employer to court and many employers including govt are allowed to avoid these at a price.

    He is on his way to the bank.

  • Zoo Keeper

    The decision to hire was invalid, making the appointment invalid. However, as the employee, Simelane has nothing to do with Zuma’s actions. Therefore he is technically the innocent party.

    It follows therefore that he should not be prejudiced and must be afforded the rights of a normal employee under law. The appointer, Zuma, would technically have to answer for the waste of funds on his salary and poor decision-making (not going to happen).

    Also, if the contract is void ab initio, the parties must be placed in the position they would have been had the contract not existed. This means Simelane would have to pay back his entire earnings!!!!

    The prejudice to an employee in his position would be untenable, so no court is going to go there unless maybe there is conclusive evidence the employee was intimately involved in his appointment process and knew his appointment was invalid. That would be one tough assignment to prove.

    Simelane will get his payout. The appointment is overturned and the saga is closed.

  • Graham

    A pretty good analysis, Pierre. I can’t see any Simelane/Zuma apologists providing a credible countervailing view.

  • Maggs Naidu – Yikes, another seven years!

    Gwebecimele
    December 5, 2012 at 13:18 pm

    Gwebs,

    I don’t see how it can be correct that Simelane must suffer the consequences of Zuma not applying his mind – especially since all this information was available to Zuma at the time he appointed Simelane.

    The PP recommended in some matter that a civil servant must pay for the consequences of a flawed decision, perhaps Zuma should be made to pay a fair severance package for Simelane.

  • Vuyo Ninzi

    I concurre with Zola.

  • Zoo Keeper

    Zola’s on the money.

  • Gwebecimele

    Maggs

    I suspect many lawyers will be reluctant to support an efficient way of managing government legal fees. Just look at e-TOLL, Marikana, etc its a free for all. LEGAL THEFT.

  • Zoo Keeper

    Gwebs

    Look not to the lawyers for your answer, but to the client.

  • Gwebecimele

    How does a molester of 11 becomes a first offender?? Is it “White Justice” at it again?

    http://www.news24.com/SouthAfrica/News/Karate-coach-gets-correctional-supervision-20121205

  • Gwebecimele

    Zook

    Similarly with prostitutes lets focus on the clients.

  • Appleni

    Let me start by apologising to introduce a new topic and ask an irrelevant question, here.

    How did Jub Jub get convicted of Murder? Wouldn’t that have amounted to manslaughter of involuntary nature? Lastly, i must declare that i just enrolled on an LLB programme and am yet to sit my first three exams next May. Criminal law is not one of them for now. Please assist

  • Maggs Naidu – Yikes, another seven years!

    Zoo Keeper
    December 5, 2012 at 15:08 pm

    Hmmm ZooKy,

    “Look not to the lawyers for your answer, but to the client.”

    Simelane is a lawyer, isn’t he?

    Adv Barbie?

    Jeff Radebe?

    Paul Ngobeni?

    :P

  • Gwebecimele

    The circus continues!! Who must pay for these legal bills? Who organised a witness to come and confuse the court? May be they should appeal there is more funds in the kitty? Ask Pravin.

    Give this Judge a “Tea”

    http://www.sowetanlive.co.za/news/2012/12/05/government-must-pay-for-injury-caused-by-massive-pothole

  • Gwebecimele
  • ozoneblue

    Cde Zuma shall govern.

  • ozoneblue

    I agree with zola. But please dont mind the pdv double standards. When it comes to constitutional rights they dont apply to “Zuma and his chronies.”

  • StevenI

    Termination for operational reasons – Zuma is incompetent – 1 weeks pay per year of services.

    He knew what was happening and if he didn’t have the foresight to find another cash cow to screw tough shit.

    He can represent Zuma in his personal capacity for the compound debate

  • Chris (Not the right wing guy)

    Before his appointment Simelane was Deputy National Director of Public Prosecutions, and with the setting aside of his appointment as NDPP, he would automatically be a Deputy NDPP again. Now I read in the newspaper “He no longer works for the NPA – in any capacity.”

    He can’t be dismissed as NDPP, but he can be dismissed from his position as Deputy NDPP.

  • ozoneblue

    @khosi

    I guess the easiest way for a white liberal to crawl up a black racist’s arse is to indulge in some public coolie bashing.

  • Maggs Naidu – Yikes, another seven years!

    Chris (Not the right wing guy)
    December 5, 2012 at 18:54 pm

    Hey Right-Wing-Guy,

    Interesting take.

    The appointment of deputy NDPP is presumably to different guidelines.

  • ozoneblue

    Hey maggs. Have you Indians have any idea what your African ANC buddies have to say about you behind your backs? LOL.

  • Maggs Naidu – Yikes, another seven years!

    ozoneblue
    December 5, 2012 at 21:12 pm

    Ozone Boy,

    “Have you Indians have any idea what your African ANC buddies have to say about you behind your backs?”

    No – I’ve no idea what people say behind my back.

    But people don’t speak about me behind my back – they have all learned from #SABC that when you speak of someone behind their back, that person has to be present for it to be #Balanced!

  • mayimele

    @chris (NRG)

    Simelane, at the time of his suspension / dismissal or termination of his contract or salary, was then an appointed NDPP, and not acting NDPP. This means he had vacated the DPP position. Only if he was a DPP acting as an NDPP like was the case with Mpshe, he would still be entitle to return to his actual position of the DPP. This being the case, your argument that he was supposed to return to the position of the DPP falls away.

  • Chris (Not the right wing guy)

    mayimele
    December 5, 2012 at 21:50 pm

    Perhaps you have a point there, I’ll think about it.

  • ozoneblue

    @maggs

    My dear pappa used to say ignorance is bliss.

    No point though. Im posting from the Tzaneen boere bar and the gay and lesbeen crowd just moved in.

  • Kay

    It seems sometimes that we are all talking across each other. I hold no brief for Simelane but I am a black lawyer and a principled one for that matter. Its about principle. Far too many of us are stuck at the same place as we were 10 or 15 years ago – same fears, same aspirations, etc. What the Simelane case does is bring a clear perspective of where we are as black legal professionals and our non-existent advocacy groups. Secondly, it also questions the “so called white liberal attorneys” and their committed to our Bill of Rghts. Ask any lawyer in your vicinity, they’ll tell you that Simelane’s rights have been violated. For black lawyers – granted – it may be about fear of victimisation (of the unknown). To me, black lawyers have themselves to blame for their troubles. Their silence is deafening.
    On the whole, black people like all other nations – Jews, Islams, etc. need to appreciate and embrace their own being. We are who we are. Our values are what they are. We embrace the established values of our culture, professions, etc. We reject lies, we reject conspiracy, we reject any violation of our human rights. We are, who we are, and respect our bill of rights. Who are you?

  • ozoneblue

    Great post kay

    Read Biko. Never be fooled by the white liberal.

  • Kay

    Herewith a spelling correction, before the wolves come hard on me: line 6 of my previous post should read “and their commitment to The Bill of Rights….etc.”
    I hope that does not qualify me from making postings in the future.? Cheers!

  • ozoneblue

    Kay.

    Good spelling doesnt matter. That can be done by a computer. It is creation ideas that count.

  • Chris (Not the right wing guy)

    Mayimele
    No that I’ve had time to think about what you said and had a good nights rest:
    I’ve never practiced Labour Law, and I write from what I remember when I had it as a subject when I studied LLB many years ago, but this is what I think:
    Let us compare the Simelane case with another hypothetic scenario:
    Say Simelane is Deputy NDPP, and he is charged with misconduct because of what he said at the Ginwala Commission and is dismissed. He goes to court and three years later the court sets aside his dismissal. He will now certainly be entitled to be placed in the position he was just before he had to vacate the position. Compare this with the facts we face now: Simelane had to vacate his position as Deputy NDPP, not because he was dismissed, but because he was promoted. Now the DA goes to court, and similer to the hypothetic scenario above the reason for him having to vacate his position as Deputy NDPP is set aside by the court: This time not the dismissal, but the promotion. Again he will be entitled to be placed in the position he was previously by either being given back his post as Deputy NDPP, or finacial compensation if that is not possible.

  • Gwebecimele
  • Brett Nortje

    More – belated but well-researched – debunking of the ANC’s racist existential myths which were used in the racial mobilisation which cost 68 000 of my people their lives:

    http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=345242&sn=Detail&pid=71616

  • khosi
  • Gwebecimele

    Chris

    Promotion is negotiated and optional unlike dismissal. Simelane was not promoted but appointed.

  • Brett Nortje

    khosi says:
    December 6, 2012 at 7:31 am

    Good old Smithy! I read after his retirement he used to go around selling home-grown veges off the back of his truck.

    No US$ 9bn estates there, like Solomon Mujuru’s!

    No R240m Presidential Palaces.

    Good old Smithy!

  • Cicero Langa

    If you want to keep seeing black lawyers as a distinct group of lawyers. And you want to keep seing that as not perpetuating the fears and prejudices of the past. And you and your distinct group want to be who you are and you want to be proud of who you are…

    I suggest you tell your (following your reasoning) president to stop appointing crooks and liars to important positions meant to safegaurd against crooking and lying. It’s about principle, you see.

  • Cicero Langa

    @Kay

  • Zoo Keeper

    Maggs

    Problematic lawyers are one thing, clients who have lots of money and are always in trouble are another.

  • Mikhail Dworkin Fassbinder

    I still say the white liberal media campaign against Mr Simelane is, to some extent, racist.

    Thanks

  • ozoneblue

    @brett

    I have never understood what whites found so offensive about the Freedom Charter. If we had embraced it in 1960 South Africa would be a better place for all to live in.

    However no use crying over spilt beans. The ANC has rejected the FC and what has remained is this fascist dotrine called the NDR. And as you can see its first objective is to destroy the White people. Do not harbor any illusions about that.

  • ozoneblue

    *fascist doctrine*

  • Maggs Naidu – Yikes, another seven years!

    IFP snatches Nkandla from ANC in by-election
    Sapa | 06 December, 2012 08:11

    The IFP snatched a ward from the ANC in a by-election in Nkandla in KwaZulu-Natal, where President Jacob Zuma’s private home is based, according to results released by the Independent Electoral Commission.

    The Inkatha Freedom Party’s Thembinkosi Francis Nxumalo won 54.99% support.

    The ward was previously held by the African National Congress, whose candidate, Bongumenzi Mninimuzi Ngcobo, won just under 50% of the vote in the last municipal by-elections.

    http://www.timeslive.co.za/politics/2012/12/06/ifp-snatches-nkandla-from-anc-in-by-election

  • Gwebecimele

    This can’t be true, few weeks ago we saw the residents of this branch prepared to block DA in their visit to Nkandla. Someone also said said they appreciate that the leader of the ANC lives amongst them.

    http://www.news24.com/SouthAfrica/Politics/ANC-loses-Nkandla-by-election-20121206-4

  • Chris (not the right wing guy!)

    Gwebecimele says:
    December 6, 2012 at 7:33 am

    Then please state Simelane’s legal position as you see it.

  • mayimele

    @Chris (NRG)

    I understand your background. I tend to think the principle you are trying to apply here is the “restitutio in integrum” meaning restore to original condition? If this is the case then let’s look at how it applies in both scenarios provided.
    On scenario one – If Simelane as NDPP is dismissed on account of his conduct at the Ginwala Commission and later the court finds in his favour – in terms of labour law practice the issues to be considered will be whether or not (a) he wants to return to his position, (b) the employer, taking into consideration issues such as the interests of the organisation and its relationship with Simelane, is willing and prepared to take him back.

    If Simelane wants to go back to his position and the employer has no problem with it, the possibility is Simelane will indeed go back and receive, in terms of the above principle, back payments from the day he was dismissed to date including benefits.

    But if Simelane wants to go back to his position and the employer is not prepared to take him back – in which cases employer often cites the interests of the company or that relationship between them has broken down beyond repair -the principle above will apply by way of negotiation of settlement between him and the employer. The settlement is often centred on the term of contract, in which case the employer might or might not get full amount that he would have got had he been allowed to see it through. The same would apply even if his dismissal was engineered by the employer, DA or any other relevant party.

    On scenario two – Simelane vacates his DPP position by promotion. This means he ceases being a DPP and loses all the entitlements and benefits of the DPP. The organisation is therefore entitled to appoint another person in his position with all the entitlements and benefits associated with that position.

    Now, by way of promotion Simelane assumes the new position of the NDPP not Acting NDPP. If he is dismissed whichever way except by his own fault, which dismissal is later overturned by the court, in terms of the above principle, he can only be entitled to be returned to the same position with all the benefits due to him in line with the position of the NDPP and not DPP. And if his dismissal is upheld by the courts as in this case, he cannot therefore claim the right to be returned to the DPP position. That right does not exists anymore.

  • Mikhail Dworkin Fassbinder

    @ OzoneGuy

    “no use crying over spilt beans”

    Ozone is right. Anyway, the wolves crying at the door are after spilt milk, not beans, and gripes about the NDR fall like water spilt off a duck’s back, or like pearls from the mouths of the swine swimming in watery ponds to which horses can be led, but never made to drink.

    Thanks.

  • Maggs Naidu – Yikes, another seven years!

    mayimele
    December 6, 2012 at 9:52 am

    Hey Mayimele,

    In Pierre’s example of a motor mechanic being appointed as heart surgeon – if the employer knew or had reasonable cause to suspect that the appointee was a motor mechanic and not a heart surgeon what should happen?

  • Zoo Keeper

    Gwebs

    The ANC bussed in its blockade supporters at Nkandla.

  • Zoo Keeper

    Maggs

    Its the employer’s fault not the employee’s and employee should not be prejudiced by the conduct of the employer.

    Mayimele’s and Zola’s posts set out the positions very well.

  • Maggs Naidu – Yikes, another seven years!

    Zoo Keeper
    December 6, 2012 at 10:12 am

    ZooKs,

    If Pierre is correct that “Simelane was never appointed and cannot be dismissed” then it should follow that Simelane’s holding of the deputy NDPP should still be valid.

    Maybe he still has a case to be returned as DG Justice if his term there did not expire prematurely.

  • Chris (not the right wing guy!)

    mayimele says:
    December 6, 2012 at 9:52 am

    Thanx – interesting topic!

  • Zoo Keeper

    Maggs

    Check Mayimele’s post, it sets out the position very well.

  • Maggs Naidu – Yikes, another seven years!

    Winnie Mandela said “The ANC is not a pig. It does not eat its children”.

    She was wrong.

    The department of Justice and Constitutional Development confirmed to The Times that former national director of public prosecutions Menzi Simelane was no longer being paid a salary. Spokespeople said that he no longer worked for the NPA in any capacity.

    Spokesman Mthunzi Mhaga said, “Although his salary has indeed been stopped, all processes including consideration of the implications of the [Constitutional Court] judgement insofar as it impacts on the appointment of an NDPP are underway. Due to legal implications involved in these processes, we are unable to give full details.”

    http://dailymaverick.co.za/article/2012-12-06-government-finally-drops-menzi-simelane-for-good

  • Gwebecimele

    …………….and the reason for dismissal is , “I did not apply my mind properly when I hired you.”

  • Gwebecimele

    Simelane has no claim over his contract as the DG of Justice. He negotiated and accepted a move to a JUNIOR post at the NPA.

  • Gwebecimele

    What stands between us and e-tolls is OUTA.

    This is a waste of time with Sdumo and Vavi at each other, it will not go anywhere.

    http://mg.co.za/article/2012-12-06-muted-beginning-to-cosatus-e-tolls-protest

  • Anonymouse

    zola

    December 5, 2012 at 12:32 pm

    Zola is of course right – see also
    Vuyo Ninzi

    December 5, 2012 at 14:29 pm
    and
    Zoo Keeper

    December 5, 2012 at 14:34 pm

    The thing is – however incompetent Simelane might have been (or rather, has been) to fill the post of NDPP, Zuma’s (and Radebe’s) blunder to appoint him nontheless now dropped him in a wee bit of financial dire straits. After having been appointed (and after having received pay for quite some time serving in that capacity), he earned the right to expect that his tenure is protected and, any overturning of the decision to appoint him, cannot be held against him, but only against the person(-s) who so irrationally appointed him. If it is as if he was never appointed because of the CC judgment, then obviously the state will be entitled to reclaim all pay that he received during his period of service as a result of a null-and-void-appointment.

    Furthermore, as mayimele and chris point out above, his dismissal as NDPP (or the setting aside of his appoiintment as NDPP) does not mean that he is not entitled to return to his previous post (as Deputy NDPP or as DG of the DOJ&CD – God Forbid!) as a result. So, it would seem as if Simelane has got his erstwhile masters (and the legal system – esspecially the labour law) by the balls. The state will have to offer him at least a silver, if not a platinum or golden handshake to let the whole matter go away legally.

    I just hope that the Bar brings its charges against him soon and that he is barred from practicing as an advocate, because such a person in the legal profession brings the whole profession into disrepute.

    Anyway, this situation brough about by Zuma should provide for further motivation when the motion of no confidence is debated after Zuma has been re-elected at Mangaung (in February next year?). But then again, will there be enough ANC cadres in Parliament with level heads and spunk to, despite instructions of their masters to the contrary, vote for the passing of the motion of no confidence (if they are allowed a secret vote – another thing that Zuma and his followers can still deny) – so that this madness can stop? (By the way, I see that Inkatha has won a by-election at the Zuma stronghold – Nkandla. Is this good news, or bad?)

  • Mikhail Dworkin Fassbinder

    @ Ozoneboy

    “My dear pappa used to say ignorance is bliss.”

    Your pappa was right. But I was raised somewhat differently. My mama told me when I was young: “We are all born superstars”. She rolled my hair and put my lipstick on, in the glass of her boudoir.

    “There’s nothing wrong with loving who you are”
    She said, “‘Cause he made you perfect, babe”
    “So hold your head up girl and you’ll go far,
    Listen to me when I say”

    Thanks.

  • Maggs Naidu – Yikes, another seven years!

    Mikhail Dworkin Fassbinder
    December 6, 2012 at 11:46 am

    Dworky,

    You’re gone Gaga again – but Ozone Boy’s pappa was as wrong as could be.

    If there was any truth in what his pappa had to say (that ignorance is bliss) the Racist White Boy would be very, very happy – instead all we have is a Ozone Boy who is a occasionally gay.

  • Gwebecimele

    http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=345242&sn=Detail&pid=71616

    “Ironically it was Hendrik Verwoerd, who became Minister of Native Affairs in 1950s, who proposed to members of the NRC the kind of substitute that over time could have grown into a meaningful form of representation. Stating that he expected large numbers of blacks to remain in the big cities for many years, he announced that government planned to give blacks “the greatest possible measure of self-government’ in these urban areas.
    All the work in these townships would have to be done by their own people, enabling blacks to pursue ‘a full life of work and service.” For this reason blacks had to be educated to be sufficiently competent in many spheres, the only qualification being that they would have to place their development and their knowledge exclusively at the service of their own people. Verwoerd invited the NRC members to meet him after the session for a ‘comprehensive interview’ about these matters and to put forward proposals, offering a prompt reply from government to their representations.[14]”

  • Kay

    Just saw in the Times that the Bar meeting they wrote about yesterday removing Simelane as member of Johannesburg Bar did not do this at all.
    The matter was not on the agenda and was not discussed. Yet another addition to the pool of lies we have witnessed around this matter.
    Also check out their spokesperson, Louw – “… Simelane could be facing serious charges of professional misconduct and worse…..” What’s that?. He also alludes to the complexity of the matter. When did it become complicated? Before or after the CC.

  • Vuyo

    Pierre you wrong. At best it would be grounds for a valid termination of the contract of employment. The ordinary consequences of termination would therefore follow. Certainly talk of golden handshakes (if true) is without legal basis (unless the employment contract provided for a scenario in terms of which cancellation would lead to an accrual of such a right (which is likely with such senior political appointments). If there was no such provision it would be a donation, subject to the donations tax and would likely constitute needless and/or fruitless expenditure (in which case the DG and minister must be tarred and feathered)!

    PS: I dont think Zola is correct regarding the unfair dismissal aspect.

  • Vuyo

    What I am essentially saying Pierre is that you might have allowed your dislike of Simelani cloud your judgment. Do you mark down your students assignments because you dislike the poor sods? I think an invistigation is in order or, even better, I shall be laying a complaint with the Public Protector (the poor students need protection from you).

  • khosi

    @Vuyo December 6, 2012 at 13:20 pm,

    Pierre operates fully on the cloud of his dislikes. To his credit, I do not recall him claiming objectivity in any of his supposedly objective analysis.

  • Dirk de Vos

    Hmm, and the work of yet another Professor de Vos, Wouter de Vos (verykingsaanspreklikheid – roughly equal to – Unjust Enrichment) should be consulted for the recovery of the salary he received while not employed at the NDPP?

  • mayimele

    @ Maggs Naidu,
    December 6, 2012 at 10:03 AM

    I guess he would have to go the same way that people like him who opted to compromise themselves, principles of their respected profession in blind favour of JZ, accepted appointments into positions where they have to serve JZ’s agenda went; and others are still going to go with their tarnished images.

    Just like PdV’s motor mechanic example, I am not if the view that Simelane, including all the other people that JZ succeeded in planting in various positions for his own benefit, was not aware that he was not appointed on merit. He also knows the brief he had to implement in return for the appointment.

    And based on this, I will not be surprised if, in terms of the meaning, interpretation and understanding of the CC’s judgment, Simelane was not entitled to any restitution he still gets it. When JZ said he applied his mind it was not in terms of what the law wanted to achieve through the incumbent, but rather what he wanted to achieve, and Simelane did part if it very well.

  • Mikhail Dworkin Fassbinder

    @ Pierre

    “no motor mechanic can legally do open heart surgery”

    Pierre is right. But does not the need for TRANSFORMATION demand that we reconsider this, and other rules based on so-called “qualifications” and “experience”? All too often, “excellence” is a code word for RACIST exclusion!

    Thanks.

  • Maggs Naidu – (maggsnaidu@hotmail.com) – Zuma MUST go!

    mayimele
    December 6, 2012 at 13:46 pm

    Mayimele,

    The implication seems to be that Simelane was party to a complex conspiracy designed to undermine the rule of law – perhaps the AFU should get back his salary as the proceeds of crime!

    Anyway – all Zuma’s appointments are suspect. We are fortunate that some (like the PP perhaps but with reservations) have come through ok.

    CJ Mogoeng has, despite my earlier reservations, shown that he is worthy of the post.

    Beyond that the entire lot, from cabinet to DGs, are the shame which South Africans must hang their heads to!

  • Alibama

    It seems as if PdV is just yanking your chain, boys.
    His previous post was how/why formal/cold legal-logic should not over rule equity.
    I like his Format: how he puts the central fact first, and immediately spells out
    the consequences:——–
    } When a court declares an appointment invalid, it is as if there was no appointment to start with.
    } Why, then, do we read about Simelane’s “dismissal”;.
    } And why is there talk of a golden handshake for Simelane?
    ——— Boom !!
    Obviously the Bill Of Rights trumps ‘void ab initio’, but where’s the official
    ranking list of what other doctrines trump ‘void ab initio’.
    – Take a rest before you analyse the following convoluted matter:—
    Against my challenge of Benoni TLC’s false billing, they contrived a default
    judgment and auctioned my fixed property to one of their buddies. [BTW, do.
    you, down in Kaap, KNOW about the now much publicised billing chaos?]

    The record shows that the magistrate who refused the rescission application
    couldn’t find my replying affidavit explaining that cause does not come AFTER
    effect, and the amount-admitted-as-owing varied over time.

    The appeal admitted that the magistrate’s WRITTEN reasons were invalid, by
    CHANGING the magistrate’s written grounds to their own NEW grounds, thereby
    denying me a due process opportunity to prepare a refutation of THEIR argument.
    Ie. the Appeal Court joined the game, instead of staying a neutral referee.

    An attorney who specialises in municipal disputes found that the TLC had
    acted illegally [analogous to the Weenen SCA case] and brought a new rescission
    application, on ‘void ab initio’ grounds.
    — The TLC lawer contrived his answering affidavit to be delivered, so that my
    incompetent attorney was not able to prepare a rebuttal of the invalid res
    judicata family arguments. And the magistrate took 6 weeks to concoct written
    reasons: finding it unnecessary to pronounce on the ‘void ab initio’, since.
    “you should have brought THAT ground” at the first [pro se] application.
    — The interesting twist, is that there was no NEED to bring the new.
    ‘void ab initio’ argument at the FIRST application, since the first.
    application’s arguments are already valid.

    But just BTW, does “you should have brought THAT ground” at the first [pro se]
    application” trump ‘void ab initio’?
    == PdV doesn’t really believe that ‘void ab initio’ trumps every thing.
    He’s just testing you.

  • mayimele

    @ Maggs Naidu

    December 6, 2012 at 15:01 pm

    Yes, that is the implication Maggs. For me Simelane was intrinsically involved in the broader scheme of things, long before JZ became the president – and now was his time to reap the fruits of his labour, unfortunately this one happened to be as bad and sour as the tree itself.

    As for Mogoeng CJ, the young ones are not yet born. Wait until the spy tapes case hits the CC. It will then that we would ascertain whose brief he holds – that of God who called him to serve in the CC obviously to serve the interests of justice and the people of South Africa or JZ and his crew.

  • Maggs Naidu – (maggsnaidu@hotmail.com) – Zuma MUST go!

    Zoo Keeper
    December 6, 2012 at 8:47 am

    ZooKsy,

    Methinks that lawyers could teach Zuma a thing or two (more than he has already been taught by his crafty lawyers).

    “Problematic lawyers are one thing, clients who have lots of money and are always in trouble are another.”

    Attorneys’ scammed clients paid out

    Johannesburg – More than R100m has been paid out to clients who were cheated by their attorneys between January and October this year, the Sunday Independent reported.

    “For 10 months of 2012, we have already paid R104m, and it’s going up,” Motlatsi Molefe, CEO of the Attorneys’ Fidelity Fund, told the newspaper.

    If this trend continued, the fund could pay out as much as R150m by the end of the year, he said.

    Molefe said the fund was concerned by the increasing number of claims resulting from money disappearing from attorneys’ trust accounts.

    Bridging conveyance funds related to property transactions were most often stolen, followed by Road Accident Fund claims and deceased estates.

    http://www.news24.com/SouthAfrica/News/Attorneys-cheat-hundreds-20121209

  • Hemerman

    Whilst Simelana might not have a claim in contract I venture to say that he does have a claim in delict. The President and the Justice Minister had all the facts when they recommended and appointed him as the head of NPA respectively. They either did not apply their minds properly or chose to ignore the facts. The ConCourt has found the President acted irrational by appointing Simelana. Clearly both the President and Justice Minster were negligent and therefore Simelana has a claim for loss of income.