Quote of the week

Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation.  This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.

KHAMPEPE J and THERON J
Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29 (22 July 2019)
25 November 2009

Neither fit nor proper

President Jacob Zuma has a wide – but not unlimited – discretion to appoint the National Director of Public Prosecutions (NDPP). By purporting to appoint Adv Menzi Simelane as NDPP, President Zuma acted unlawfully because Simelane clearly does not meet the requirements for the job as stipulated by the National Prosecuting Authority (NPA) Act.

The Constitution requires that the NDPP must be appropriately qualified and the NPA Act defines “appropriate qualification” as somebody who is: (i) a South Africa citizen; (ii) possesses legal qualifications that would entitle him or her to practice in all Courts in the Republic; and (iii) must be a fit and proper person, with due regard to his or her experience, conscientiousness and integrity to be entrusted with the responsibilities of the office concerned.

As the Ginwala Inquiry made clear:

What the Act also envisages is that the incumbent must be a person of experience, integrity and conscientiousness to be entrusted with the responsibilities of the office of the NDPP…. The notion of integrity is one that does not attract much debate in this case. The notion relates to the character of a person – honesty, reliability, truthfulness and uprightness.

Unfortunately, we know from the Report of the Ginwala Inquiry that Simelane is not honest. Neither is he reliable, nor does he possess the necessary truthfulness and uprightness required by the Act. His appointment is therefore not legally valid as he does not meet the MINIMUM requirements for the job.

Simelane was the main witness of the government during the Inquiry but he showed himself to be a liar with a lack of understanding of his job and a willingness to mislead the Inquiry to achieve specific, politically required, ends.

The Ginwala Inquiry found that Simelane had misled the Inquiry by hiding from it the fact that he had obtained a legal opinion which contradicted his own views on the nature of the relationship between the Department of Justice and the NDPP. He only conceded that there was indeed such a legal opinion when he was confronted with this fact by Adv Wim Trengrove during cross examination. Ginwala states:

The DG: Justice had an incorrect understanding of his accounting responsibilities under the PFMA, despite being in possession of legal opinions from senior counsel explaining the ambit of his responsibilities. He allowed the Minister to continue with an incorrect understanding of the responsibilities of the NDPP.

Simelane had also drafted a letter – later signed by then Justice Minister, Brigitte Mbandla – which instructed Pikoli not to proceed with the arrest of Jackie Selebi. This instruction was clearly illegal and constituted a criminal offense in terms of the NPA Act. As Ginwala tactfully put it:

the conduct of the DG: Justice in drafting the document in the manner it reads was reckless to say the least. 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…..

Ginwala also found that Simelane was not a man of honesty and integrity as he had made statements that were false and presented legal positions that were untenable:

I must express my displeasure at the conduct of the DG: Justice in the preparation of Government’s submissions and in his oral testimony which I found in many respects to be inaccurate or without any basis in fact and law. He was forced to concede during cross-examination that the allegations he made against Adv Pikoli were without foundation.

In the light of the above it is very difficult to sustain the fiction that Simelane is even remotely a person who could be called “fit and proper”. He is not honest. He is not reliable. He is not truthful. What counts in Simelane’s favour is that his view of the NPA – not shared by Ginwala, senior counsel or by any person who has read the Act and the Constitution –  is that the NPA is not independent, that the NPA should take instructions from the Minister of Justice and the President – even in making decisions on individual cases – and hence that the NPA is a tool in the hands of the government to do with it as it pleases.

No wonder President Zuma purported to appoint him. With Simelane at the helm, no one will ever again be prosecuted if the President and the Minister does not give the go-ahead. If this appointment is allowed to stand, it will bring an end to even the pretense that the constitutional guarantee that the NDPP must act without fear, favour or prejudice, will be adhered to.

This is the darkest and most scandalous day yet in the short life of President Zuma’s tenure. The appointment shows an utter disregard for the Constitution and the law. It is nothing more than the actions of a gangster hell bent on protecting himself and his cronies. I feel ashamed that I have given our President the benefit of the doubt for all these months.

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