Constitutional Court invites Zuma to do the right thing

The decision of a unanimous Constitutional Court confirming that the appointment by President Jacob Zuma of Adv. Menzi Simelane as National Director of Public Prosecutions (NDPP) was irrational and hence invalid, raises at least two serious questions. First, why did the President appoint Adv. Simelane as NDPP when he knew there was prima facie evidence that Simelane was dishonest and that he lacked the requisite integrity to fulfil his role as NDPP “without fear, favour or prejudice”? Second, will the President now adhere to the letter and the spirit of this judgment and appoint a “non-political and non-partisan” lawyer as the new NDPP, or will other considerations lead him to appoint a Zuma loyalist to the position?

At the outset it must be said that the Constitutional Court judgment in Democratic Alliance v President of the RSA and Others (authored by Justice Zak Yacoob) must be read as a searing judicial indictment of the President, of his Minister of Justice and of Simelane himself. The judgment demolishes the legal arguments of the Minister and Simelane one after the other, while confirming important principles of Constitutional Law in the process.

The court began by rejecting the (rather odd) contention advanced by Minister Jeff Radebe and by Adv. Simelane that the provision in the NPA Act requiring the appointment of “a fit and proper person, with due regard to his or her experience, conscientiousness and integrity” as NDPP, is not an objective standard and affords the President a wide discretion to decide for himself whether an appointee is fit and proper or not — even when the proven facts suggest otherwise.

The Constitutional Court’s rejection of this argument must be correct. To hold otherwise would imply that the provisions of the NPA Act do not bind the President, a law passed by our democratically elected Parliament. Moreover, as Justice Yacoob pointed out, to hold that the President’s subjective opinion should determine whether the NDPP is fit and proper “is not in keeping with the constitutional guarantee of prosecutorial independence”.

Tellingly, one of the important issues clarified by this judgment is that the Constitution requires the NPA to be independent from the government as well as other powerful interests (such as big business elites). As Justice Yacoob points out, the NDPP must be viewed as a “non-political chief executive officer directly appointed by the President”.

This is significant as it underscores the fact that the office of the NDPP “must be non-political and non-partisan” and that its role “is closely related to the function of the judiciary”. The Court’s view regarding the need to safeguard the independent and non-partisan role of the NPA runs like a golden thread through the judgment and puts paid to arguments (first hinted at by former President Thabo Mbeki during the Jackie Selebi fiasco) that the NPA is somehow subject to the authority or control of the Minister of Justice or the President.

I hasten to add that the Constitutional Court did not declare Simelane’s appointment invalid because the judges did not approve of the appointment or because they believed that the President could have made a better appointment. To do so would have been improper as this would have intruded on the exclusive terrain of the Executive and would have breaches the separation of powers doctrine. Instead, the court tested whether the decision to appoint Simelane as NDPP was irrational. This is a relatively weak standard, which leaves a wide discretion to the President to choose a suitably qualified head of the NPA – as long as he does not act in a completely irrational manner.

Even so, Minister Radebe contended that the Constitutional Court would be in breach of the separation of powers doctrine if it required the President to act rationally when he made important appointments. Justice Yacoob was not impressed with this self-serving argument:

It is therefore difficult to conceive how the separation of powers can be said to be undermined by the rationality enquiry. The only possible connection might be that rationality has a different meaning and content if separation of powers is involved than otherwise. In other words, the question whether the means adopted are rationally related to the ends in executive decision-making cases somehow involves a lower threshold than in relation to precisely the same decision involving the same process in the administrative context. This is wrong. Rationality does not conceive of differing thresholds. It cannot be suggested that a decision that would be irrational in an administrative law setting might mutate into a rational decision if the decision being evaluated was an executive one. The separation of powers has nothing to do with whether a decision is rational. In these circumstances, the principle of separation of powers is not of particular important in this case. Either the decision is rational or it is not.

The Constitutional Court then proceeded to determine whether the decision was indeed rational by looking, on the one hand, at the process through which the President came to the decision to appoint Simelane and by asking, on the other, whether this process was rationally related to the constitutionally and legally prescribed aims of appointing the NDPP.

One of the powerful and very useful aspects of the judgment (which will probably be quoted regularly in the future) is that it sets out a list of goals, which the President must aim to achieve when he appoints the NDPP. According to Justice Yacoob, the purpose of empowering the President to appoint the NDPP is to ensure that the person appointed as NDPP is sufficiently conscientious and has the integrity required to be entrusted with the responsibilities of the office and, in particular, to ensure amongst other things that:

• the prosecuting authority performs its functions honestly and without fear, favour or prejudice;
• decisions to institute criminal prosecution are taken honestly, fairly and without fear, favour or prejudice;
• any improper interference, hindrance or obstruction of the prosecuting authority by any organ of state is not tolerated.

I read this list of goals as an invitation extended by the Constitution Court to President Zuma (and all future Presidents of South Africa) to do the right thing and not to appoint an NDPP after considering only irrelevant factors, such as that the appointee is blindly loyal to the President, or that he could be trusted never to bring criminal charges against the President or anyone in his inner circle.

In any event, the Court found that the problem with the appointment of Menzi Simelane was that there was no rational connection between these goals and the way in which the President and the Minister went about deciding on appointing him.

In order to illustrate this point, the judgment meticulously analyses the performance of Menzi Simelane before the Ginwala Inquiry and exposes the discrepancies, evasions and untruths in his statements in relatively harsh language. One example will suffice. In rejecting the argument by Minister Radebe that he and the President could discount Simelane’s behaviour at the Ginwala Inquiry because it was not a court of law, Justice Yacoob made the following observation:

This is an irrelevant consideration. It does not matter for the purposes of evaluation of credibility whether a person is dishonest and devious to a court, to a commission of enquiry, to an employer or to anyone else for that matter. Dishonesty is dishonesty wherever it occurs. And it is much worse when the person who had been dishonest is a senior government employee who gave evidence under oath. Although not a court, the Ginwala Commission was about as important a non-judicial fact-finding forum as can be imagined.

For some inexplicable reason the Minister and the President chose to ignore the findings of the Commission when making the decision to appoint Simelane as NDPP despite the fact that this:

ought to have been cause for great concern. Indeed, these comments represented brightly flashing red lights warning of impending danger to any person involved in the process of Mr Simelane’s appointment to the position of National Director. Any failure to take into account these comments, or any decision to ignore them and to proceed with Mr Simelane’s appointment without more, would not be rationally related to the purpose of the power, that is, to appoint a person with sufficient conscientiousness and credibility.

One can only hope that the President will take up the invitation by the Constitutional Court to heed the “flashing red lights” when he makes a decision on who to appoint as NDPP. This is desperately needed to avoid the further erosion of the credibility of the NPA. It is imperative that President Zuma appoints a non-political and non-partisan NDPP to begin repairing the damage to that institution, damage done over many years through the actions of at least three successive Presidents. But I fear that the President might not be someone who is easily persuaded that he should stick to the letter and spirit of the law and the Constitution, so I will not be surprised if he appoints a NDPP without taking into account the goals outlined by the Constitutional Court.

I sincerely hope that the President will not follow this course of action and that – in the interest of the country – he will be wise and selfless enough to make a non-partisan and non-political appointment. But if he fails to take the wise and legally correct course, this will again raise questions about whether President Zuma might be acting with an ulterior motive when he makes decisions about the appointment of the NDPP. After all, given his own past brushes with the law and given the fraud and corruption charges still hanging over his head, he must be keenly aware of the potential danger posed to him and those in his inner circle by a truly independent NDPP.

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