As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
In commenting on the (re-)appointment by President Jacob Zuma of Mr Willem Heath as the head of the Special Investigating Unit (SIU), an editorial in Business Day this morning notes that President Jacob Zuma has acted consistently “to draw around him an iron ring of men he relies on to keep him safe. South Africa and its interests are not part of this particular calculation. The fact that the fraud and corruption charges against him, expediently dropped before the last general election, could quite easily be resuscitated is at the centre of everything he does”.
Part of this pattern was the appointment, early in his tenure as President, of Adv. Menzi Simelane as National Director of Public Prosecution (NDPP). The abolition of the Scorpions and the creation of the far less independent Hawks can similarly be seen as an attempt to protect the President from future prosecution for taking a bribe from fraudster Shabir Shaik.
President Zuma’s recent statement that the executive “has the sole discretion to decide policies for the government”, that the executive “must be allowed to conduct its administration and policy-making work as freely as it … can” and that the “powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote”, can thus arguably be read as an expression of concern about the Constitutional Court’s decision to torpedo the Hawks, and the resultant dismantling of parts of the iron ring President Zuma had erected around himself to protect himself from prosecution for corruption.
It is against this background that today’s judgment of the Supreme Court of Appeal (SCA) declaring the appointment of Menzi Simelane unlawful, must be read. In Democratic Alliance v President of the Republic of South Africa and Others a unanimous court, in a judgment authored by judge Mahommed Navsa (Heher, Mhlantla, Majiedt JJA and Plasket AJA concurring) the SCA found that the President had acted irrationally and hence unlawfully when he appointed Simelane as NDPP and acted in breach of the prescripts of the Constitution and section 9(1)(b) of the National Prosecuting Authority Act 32 of 1998.
Perhaps believing that it was required to provide the President with some pointers on the nature of a constitutional democracy like ours, the SCA pointed out that ours is a democratic state founded, amongst other values, on the supremacy of the Constitution and the rule of law. Section 1(d) of the Constitution commits government to democracy and to accountability, responsiveness and openness. Section 2 of the Constitution reaffirms that the Constitution is the supreme law of the Republic and that law or conduct inconsistent with it is invalid and that the obligations imposed by it must be fulfilled. Thus, every citizen and every arm of government ought rightly to be concerned about constitutionalism and its preservation.
This meant that the President, as the supreme upholder and protector of the Constitution, is its servant. Like all other organs of state, the President is obliged to obey each and every one of its commands. In what could be read as an indirect response to the recent statements of President Zuma, the SCA then proceeded to make the following powerful observation:
No-one is above the law and everyone is subject to the Constitution and the law. The legislative and executive arms of government are bound by legal prescripts. Accountability, responsiveness and openness are constitutional watchwords. It can rightly be said that the individuals that occupy positions in organs of state or who are part of constitutional institutions are transient but that constitutional mechanisms, institutions and values endure. To ensure a functional, accountable constitutional democracy the drafters of our Constitution placed limits on the exercise of power. Institutions and office bearers must work within the law and must be accountable. Put simply, ours is a government of laws and not of men or women.
The SCA pointed out that institutions of state integral to the well-being of a functioning democracy have to be above reproach, have to be independent and have to serve the people without fear, favour or prejudice. Given the fact that the NPA has “awesome powers” and “that it is central to the preservation of the rule of law”, it is imperative that members of the NPA exercise these powers with the utmost integrity. That must mean that the people employed by the prosecuting authority must themselves be people of integrity who will act without fear, favour or prejudice.
The SCA again reminded us that in the Certification judgment the Constitutional Court stated that section 179(4) of the Constitution provides that the national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice. “There is accordingly a constitutional guarantee of independence [of the NPA], and any legislation or executive action inconsistent therewith would be subject to constitutional control by the courts.”
This is why the NPA Act requires that the NDPP must, inter alia “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.” This was an objective standard. The President could not decide, based on his own personal views and disregarding all the available evidence, that his choice for NDPP was “fit and proper”.
This is so because the relevant section of the NPA Act does not use the expression “in the President’s view” or some other similar expression. Qualities like “integrity” must be assessed objectively. A person would have integrity if he or she possesses characteristics like‘honesty, principle, honour, virtue, goodness, morality, purity, righteousness, probity, rectitude, truthfulness, trustworthiness, incorruptibility, uprightness, scrupulousness, reputability.
In the light of the above the President was required to obtain sufficient and reliable information about the candidate’s past work experience and performance; to obtain sufficient and reliable information about the candidate’s integrity and independence; and in cases where the candidate is the subject of allegations calling his fitness to hold office into question, a satisfactory process to determine the veracity of the allegations in a reliable and credible fashion.
In this case the starting point of the President was wrong. The Minister of Justice had stated that the President told him, at the outset, before asking for his input, that the President had “firm views” on appointing Mr Simelane as NDPP. The President could not argue, as he did, that absent any firm evidence to the contrary he could conclude that Simelane was fit and proper. More was required from the President to comply with the law.
This would especially be the case in a situation like the one under review where serious findings of impropriety had been made by the Ginwala Enquiry and by a court of law against the President’s choice of NDPP.
A fundamental problem for the Minister and the President is that they both considered that the GE [Ginwala Enquiry] report was irrelevant or, based on a rigid view that the GE enquired into Mr Pikoli’s fitness for office and did not concern Mr Simelane’s integrity. It is clear from the President’s account of the discussion with the Minister and from his description of his mindset…. that he took the view that the GE report, insofar as it related to Mr Simelane, was a note of precaution to the National Executive, the NPA and Parliament and that it was not a report intended to have Mr Simelane disqualified for future appointments. The President and the Minister wrongly discounted Minister Surty’s serious concerns about the Ginwala report and its impact on Mr Simelane. So too they were too easily dismissive of the PSC’s [Public Service Commission’s] attitude in this regard. It ought also to have been a matter of concern that the GCB had been poised to enquire into Mr Simelane’s conduct ─ it is a matter that would directly affect public perception about his candidacy. It is not unlikely that the GCB probe ground to a halt because of the ensuing litigation.
The Ginwala Enquiry report was directly relevant to the questions required to be addressed in the appointment process. They bring his integrity directly into question. They were issues of serious concern to Minister Surty, with whom the PSC agreed. There may well be answers forthcoming from Mr Simelane on the issues raised by the GE report, but at the very least they required interrogation.
The Minister and the President therefore both made material errors of fact and law in the process leading up to the appointment of Mr Simelane. This speaks to both rationality and legality. The President is required to act in good faith and must not misconstrue his powers. In failing to take the findings of the Ginwala Enquiry into account, the President took a decision in respect of which he ignored relevant considerations. By doing so he misconstrued his powers and acted irrationally.
It is clear that the President did not undertake a proper enquiry of whether the objective requirements of the NPA Act were satisfied. In fact, “on the available evidence the President could in any event not have reached a conclusion favourable to Mr Simelane, as there were too many unresolved questions concerning his integrity and experience”.
The SCA concluded its judgment by responding to the view expressed by the President that he was “the choice of the people. The Constitution vests in him the power to apply his value judgment and appoint a NDPP who meets the objective criteria and is a fit and proper person to hold such office.” This view implies that because the President was democratically elected he had the right to choose anyone he wished as head of the NDPP and to determine whether the requirements for a NDPP prescribed in the NPA Act was met. It mirrors previous statements made by the President about the separation of powers doctrine. The SCA dismissed this view by quoting former Chief Justice Ishmael Mahommed.
“The legislature has no mandate to make a law which transgresses the powers vesting in it in terms of the Constitution. Its mandate is to make only those laws permitted by the Constitution and to defer to the judgment of the court, in any conflict generated by an enactment challenged on constitutional grounds. If it does make laws which transgress its constitutional mandate or if it refuses to defer to the judgment of the court on any challenge to such laws, it is in breach of its own mandate. The court has a constitutional right and duty to say so and it protects the very essence of a constitutional democracy when it does. A democratic legislature does not have the option to ignore, defy or subvert the court. It has only two constitutionally permissible alternatives, it must either accept its judgment or seek an appropriate constitutional amendment if this can be done without subverting the basic foundations of the Constitution itself.” These statements are beyond criticism and apply equally when actions or decisions by the executive are set aside.
The judgment could therefore be read as engaging in a dialogue with the executive about the power of the judiciary vis-a-vis the executive. It reminds the President that he is not above the law and that he cannot ignore the law or the judgments of the courts enforcing the law.
I would guess that the judgment would not go down well with President Zuma and others who have launched direct or veiled attacks against the judiciary and against the very principle of a supreme Constitution enforced by the courts. How the executive responds to this judgment is therefore pivotal to the future health of our constitutional democracy. Attempts to subvert the judgment or undermine the court who made it, would send a signal that the current government opposes the notion of a constitutional democracy. A sober and considered response would go a long way to allay fears among some that the executive is indeed not committed to our constitutional project.
One further issue needs to be highlighted. For the moment Adv. Simelane is not legally prohibited from continuing in his post. Section 167(5) of the Constitution states that the Constitutional Court makes the final decision whether conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal before that order has any force. However, as a practical matter, it would probably be in the best interest of the administration of justice and the criminal justice system as a whole if Adv. Simelane voluntary stepped aside until the Constitution Court has either confirmed or overturned the SCA decision.
It must be recalled that we have a system of objective invalidity, which means an unconstitutional act by the President is unconstitutional from the moment it was taken. If the Constitutional Court confirms that the President had acted unconstitutionally, then the appointment of Adv. Simelane would be void and all decisions taken by him since appointment would have no force and effect unless otherwise directed by the Constitutional Court. Surely, it would be better if this legal uncertainty is not further exacerbated by the continuing presence of Adv. Simelane as NDPP.
If the Constitutional Court overturns the SCA judgment, Adv. Simelane could then resume his duties and little harm would have been done to the administration of justice. However, if that court confirms the SCA decision and Simelane had stepped aside now, it would then not be faced with the difficult issue of what to do about the legality of all the decisions taken by Simelane since the SCA had found that his appointment was unlawful. It would be understandable if the first reaction of a defiant government and an even more defiant Simelane would be to want to continue in office, but this would not be in the best interest of the government or the country. Hopefully, after considered reflection, the best interest of the country will weigh heavier than the ego’s of the personalities involved in this case with Adv. Simelane and with the government and a decision will be made for Adv. Simelane to step aside until the Constitutional Court has delivered its judgment.