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.
What can be done about Menzi Simelane, the National Director of Public Prosecutions (NDPP) who seems to be “restructuring” the NPA into a big mess? Mr Simelane seems to have a rather unique management style: he seems to have a sharp eye for identifying all the individuals and units doing their jobs properly, then he removes them from their jobs. If I was more of a conspiracy theorist I would have been wondering whether he is being paid off by criminals to ensure the destruction of the NPA and the criminal justice system.
At the rate Simelane is proceeding, he will have made sure that the NPA is completely useless by the time he is finally fired, or falls on his sword or is removed by the Courts because he is not a fit and proper person (having lied to an Inquiry and having displayed a shocking lack of knowledge and understanding of, and respect for, the Constitution and the jurisprudence of the Constitutional Court).
After indulging in what seems to have been several unfair labour practices (by unilaterally changing the job description of top prosecutors), he has now completed the “restructuring” of the Specialised Commercial Crimes Unit (SCCU) by sidelining its head Chris Jordaan. Reports say the unit has in effect been disbanded. The SCCU has always had a conviction rate of above 90% – unlike other units of the NPA with a far less successful record – so why it needed to be “restructured” is anyone’s guess. In any case, this must be good news for white collar criminals, whether they are private sector tenderpreneurs or other cronies of the mighty and influential.
All this happened despite assurances to the contrary from Justice Minister Jeff Radebe. After Simelane announced this brilliant new scheme to improve efficiency, he was told by Radebe in a meeting on 29 April to put on hold the restructuring of the SCCU and three other specialised units within the NPA. But news reports suggest that Jordaan had left his office and been moved to the NPA head office in Pretoria. The staff of the SCCU had also been assigned to provincial directorates of prosecution and the unit, with its success rate of 93.7% at last count, was no longer functioning in its original capacity.
This will all be sold as part of the transformation of the NPA, but I am rather suspicious that this is the real reason for the decimation of the NPA. Given Simelane’s history and his demonstratble lack of honesty and commitment to the Constitution, I fear the worst. Even if this rather peculiar “restructuring by demolition” is part of a much needed transformation plan, he is sure as hell going about it in exactly the wrong way – as the Minister of Justice has acknowledged.
In all of this, what remains rather comical is the clamouring of the Democratic Alliance (DA) that Minister Jeff Radebe should intervene to stop Simelane from doing further damage to the already damaged NPA. The DA – correctly, I have previously argued – insisted that the NPA was independent and that it was required by the Constitution to act “without fear, favour or prejudice”. The DA had complained bitterly before about the perceived interference of the Minister of Justice with the work done by the NPA and with the decisions of the NDPP.
It is a bit rich then for the DA to insist that the Minister should intervene to stop Simelane from doing his job. What the DA is saying is that the NPA is only independent when it suits them – otherwise it should take instructions from the Minister. This cannot be. Simelane is obviously doing his job very badly, but if the NPA is independent – as the Constitutional Court confirmed and as the NPA Act makes clear – then the Minister cannot give instructions to Simelane on how to run the NPA.
Because the Minister has to take final responsibility for the NPA, he can request all the information about the planned restructuring of the NPA to appraise himself of what Simelane is up to and to explain this to his colleagues and to Parliament. He is also perfectly entitled to meet with Simelane and to discuss “various management challenges” (a wonderful South African phrase for a “cock-up”) with him. However, because the NPA is independent (after all the Constitutional Court said so) the Minister cannot give any instructions to Simelane on how to run the NPA. If he does, he would be interfering with the independence of the NPA as guaranteed by the Constitution.
Maybe Minister Radebe is now discovering to his consternation that the appointment of Simelane was not such a great idea. But President Zuma has appointed Simelane and we are now stuck with him for his full tenure – unless he fails so spectacularly to do his job that he becomes unfit for office, in which case he can be fired after the correct procedure prescribed in the NPA Act is followed.
These are unpalatable facts and one has to be principled to face up to them. Sadly the DA seems to be less than principled on this score.BACK TO TOP