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.

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