Our own Minister Ras Dumisani

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.

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