Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
12 November 2010

A leap of logic and a leap of faith

The National Prosecuting Authority Act states that the President can appoint any South African citizen with a legal qualification who is “fit and proper with due regard to his or her experience, conscientiousness and integrity” as National Director of Public Prosecutions (NDPP). This the President purported to do when he appointed Adv. Menzi Simelane to the post of NDPP.

Given Adv. Simelane’s previous brushes with criminal conduct, his unfortunate tendency to be less than truthful and to mislead courts and other official bodies, and his rather adventurous interpretations of the law and the Constitution, it was far from clear that he was indeed a “fit and proper person” as required by the law. The DA therefore challenged the appointment of Simelane, inter alia (as some lawyers might say to demonstrate a basic knowledge of Latin), on the basis that he was not fit and proper and that he therefore did not meet the minimum requirements for the job of NDPP as stipulated by the law.

In the judgment handed down in the case of Democratic Alliance v President of the Republic of South Africa and Others in the North Gauteng High Court, acting judge PC van der Byl found that Adv. Simelane was indeed “fit and proper”. (Why an acting judge — who does not have the security of tenure of a permanent appointee — was asked to hear this politically explosive case remains a mystery.)

I believe the judgment is wrong. It is also badly argued, in as much as any argument can be discerned at all from the reasoning provided by Van der Byl AJ. (Class, although this assignment will obtain 80% for an admirable exposition of the facts, it will obtain no more than 30% for an exposition of the law and 0% for an application of the law to the relevant facts: overall mark 35%.)

Here are my reasons for disagreeing with the judgment. (Premier Helen Zille and members of the ANC Youth League in the Northern Cape might want to take notes on this demonstration of how one can legitimately criticise a decision of an independent body such as the Human Rights Commission, the NDPP or a judge without reverting to ad hominem attacks that undermine the respect for – and independence of – such institutions.)

I come to this conclusion not based on the particular personalities involved in this case, but based on what I see as a complete abdication by the court of its responsibility to enforce the minimum legal requirements that any candidate must meet before he or she can be appointed as NDPP.

The court found (correctly, in my view) that because the law does not prescribe an open and competitive process for the appointment of the NDPP, there was not sufficient evidence before the court to warrant a finding that the President acted irrationally or with an ulterior purpose, despite the President’s rather lackadaisical approach to determining whether Adv. Simelane was indeed a qualified candidate for appointment to the position of NDPP.

However, the court also rejected the contention that the President acted unlawfully by appointing the new NDPP because Adv. Simelane was in fact not fit and proper as required by the law. The argument here centred on the principle of legality, which is an integral part of the Rule of Law. Despite having a broad discretion, the President cannot appoint a person to the position of NDPP if that person does not meet the minimum requirements for a job as clearly provided for by law. If he appoints someone who does not possess the minimum requirements for the job, he acts in “excess of the power conferred on him or her by the enabling legislation” and hence acts unlawfully in contravention of the principle of legality.

The big question is therefore the following: What makes a person “fit and proper” — as required by the NPA Act – and therefore, amongst other things, appointable as the National Director of Public Prosecutions (NDPP)?

When deciding whether a person is indeed “fit and proper”, should a court accept the assurances of an appointee and the person (in this case the President, probably acting on the advice of the Minister of Justice) who appointed the NDPP that the candidate is indeed fit and proper? In other words, should the court accept the subjective assurances of a purported appointee and the President that the future conduct of the appointee will comply with the legislative requirement to act without fear or favour? Or is a court rather required to look at all the relevant facts in the public domain and make (what many lawyers would call) an independent and objective determination about the facts which existed at the time of the appointment?

If the former route is followed (as was seemingly done in this case), it would completely drain the legal requirement that the NDPP must be “fit and proper” of any practical meaning and would allow the President to appoint almost anyone with a law degree and South African citizenship — including a dishonest scoundrel — as the head of the prosecuting authority, as long as the President and the appointee assure everyone that the new appointee will indeed mend his ways and will act without fear, favour or prejudice in future.

This clearly cannot be correct.

The problem with Van der Byl AJ’s judgment is that he conflates two distinct issues. First, at the time of the appointment the NDPP must meet the minimum requirement of being a fit and proper person as required by section 9 of the NPA Act. Second, once appointed the NDPP is required, in terms of section 32 of the Act, to serve impartially and to carry out his or her duties in good faith and without fear, favour or prejudice.

Obviously a person who meets the requirement of being a fit and proper person may well be more likely to act in the way prescribed by section 32. But even if the person, once appointed, acts without fear, favour or prejudice or even where assurances are given by the new appointee and by the President that the new appointee will act in this manner, this cannot cure the initial defect that the appointee did not comply with the minimum requirements for the job prescribed by the law.

An example will illustrate my point. Imagine a law prohibits the appointment of a pedophile as a primary school teacher. In a separate section, the law also states that once appointed a primary school teacher may not molest the children in his care. If the legality of the appointment of the teacher is challenged, a court cannot argue that while the teacher was indeed a pedophile at the time of his appointment, the first requirement was met because assurances were given by the teacher (and by those who appointed him) that he would not molest any children in his care in future. Even if, eighteen months after his appointment, he had not (yet) molested any children, this will not cure the original defect in the appointment because at the time he was appointed his appointment did not meet the minimum requirements for appointment prescribed by the law.

The fundamental mistake of Van der Byl AJ is that he asks the wrong question. Instead of looking at all the evidence available to the President at the time of the appointment and asking whether the appointee was fit and proper at the time when he was appointed, he asks whether there is sufficient evidence — given the assurances of the candidate and the person who appointed him — that the appointee will in future act without fear, favour or prejudice.

Furthermore, even if one agrees with Van der Byl that the requirements of section 9 and 32 of the NPA Act must be read together, Van der Byl AJ errs by taking at face value the assurances given by the new appointee that he will indeed now act without fear favour or prejudice despite the fact that the appointee had previously claimed that the NDPP is required to take instructions from the Minister of Justice and was not independent. There is no indication at all that Van der Byl had weighed the overwhelming evidence of previous malfeasance by Adv. Simelane against the assurances that things will in future be done differently to determine whether such assurances were plausible.

It is rather astonishing that although the learned Van der Byl AJ finds that the criticism of Adv. Simelane’s conduct may well be justified; that the allegations that Simelane did not act with integrity in the past may also be justified; and that Simelane portrayed a lack of respect for the independence of the office he was appointed to in the past, he glibly states — without any explanation — that he finds himself unable to hold that Adv. Simelane was not fit and proper when appointed.

There is no analysis, no weighing of evidence, no reasoning for this decision. The reason for this, I suspect, is because Van der Byl had decided to ignore everything that had happened in the past and hence had declined to determine at all whether Adv. Simelane was indeed fit and proper as required by section 9 of the NPA Act on the day that he was appointed. Instead, Van der Byl focuses on the future and determines that given the bland assurances of future good conduct he is unable to find that Simelane was not fit and proper on the day he was appointed.

From a legal perspective, the only way in which the decision could have been found to  be lawful would have been to make a finding that there was not sufficient evidence before the court that at the time of his appointment Adv. Simelane lacked the integrity required to make him a fit and proper person for appointment.

But this Van der Byl did not do.

Indeed, he seems to suggest that there were overwhelming evidence that Adv. Simelane lacked the requisite integrity. The learned judge then takes a leap of logic (as well as a leap of faith) and seems to conclude that all the evidence of wrongdoing in the past had been wiped out by the bland assurances of the appointee and by the President that the appointee would indeed have more integrity in the future, which would enable him to act without fear, favour or prejudice as required by the Constitution and the NPA Act.

This leap of logic and of faith might turn out to be warranted. Individuals appointed to important independent positions sometimes grow a backbone and start acting in ways that surprise and delight. But it is not a leap of logic and of faith allowed by the law. If Adv. Simelane was not fit and proper on the day of his appointment, no assurances that he would become fit and proper in future could cure the inherent defect in the appointment. Unfortunately the judge did not grasp this simple fact. No wonder he failed the assignment.

PS: I would suggest that in determining whether a person is “fit and proper” the following test could be used. Would a reasonable person (someone who is aware of all the facts about the person which may be in the public domain at the time of appointment, not an overly fastidious or suspicious person, a person not blinded by particular ideological or party-political commitments) have a reasonable apprehension that the appointee lacks the requisite integrity, honesty and diligence required to do the job in accordance with his or her constitutional and legal obligations. In other words, one may ask whether the above mentioned reasonable person will justifiably be fearful that the appointment will not instill public trust in the decisions taken by the appointee.

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