An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
What should one make of the report in todays Mail & Guardian that a subcommittee of the Johannesburg Bar has found there was merit in the complaint lodged against National Director of Public Prosecution (NDPP), Menzi Simelane, which alleged that he was not a fit and proper person? Simelane has now been afforded an opportunity to respond to the allegations in writing and is required to submit reasons why he should remain an advocate in good standing in light of adverse findings made against him by the Ginwala Inquiry.
Simelane was slammed by Ginwala as an unreliable and arrogant witness. His performance before the Ginwala Inquiry was up there with the performances of Glen Agliotti and Jackie Selebi during the trial of the latter. Ginwala also found Simelane may have been acting unlawfully when he drafted a letter for former justice minister, Brigitte Mabandla, instructing Pikoli to cease the investigation into Selebi until she was satisfied about the merits of the case.
A subsequent investigation into Simelane’s conduct at the inquiry by the public service commission (PSC) found he should have faced a formal hearing, but Justice Minister Jeff Radebe overruled this and recommended him to President Jacob Zuma in November last year to be appointed as Vusi Pikoli’s successor.
If the Johannesburg Bar finds that Simelane’s conduct made him unfit for membership of the Bar and he is struck off as a member of the Bar, it would in effect mean that he would have been ineligible for appointment as NDPP at the time of his appointment. Whether this would in fact happen, is of course far from clear.
Section 9(1)(a) of the NPA Act states that anyone can be appointed as NDPP who “possess legal qualifications that would entitle him or her to practise in all courts in the Republic”. One therefore does not have to be a member of the Bar to be eligible to serve as the NDPP. One needs to have obtained the relevant legal qualification – usually an LLB – to qualify for appointment.
But section 9(1)(b) of the Act further states that one can only be appointed as NDPP if one is a “fit and proper” person. If Simelane is struck off as a member of the Bar by the High Court because he is no longer a fit and proper person, it would mean that a High Court had in effect found that Simelane does not possess the qualities specified in the law to have been legally appointed as NDPP.
At the very least, such a finding – if it is ever made – would bolster the application challenging the legality of Simelane’s appointment. If such a finding were ever to be made, Simelane would really have no other choice but to resign as NDPP. If this ever happened, it would leave very difficult legal questions unanswered as it would mean that Simelane’s appointment was unlawful when it was made. Minister Jeff Radebe and President Jacob Zuma would obviously be severely embarrassed by such a finding and questions will be asked about the motivation behind Simelane’s appointment.
And if such a finding is made, would that mean that all the decisions taken by Simelane as NDPP – including the decision to call off attempts to freeze the foreign assets of businessman Fana Hlongwane, who was allegedly a beneficiary of arms deal corruption – were null and void?
Maybe it is too early to worry about these matters. Simelane might provide the subcommittee of the Johannesburg Bar with excellent reasons why he is indeed a fit and proper person. He might argue – as he did at a public debate that I attended – that he was merely following instructions from the then Minister and the then President when he wrote the letter containing an illegal instruction and when he appeared before Ginwala and misled that Inquiry. Much like some Nazi’s after the second World War and police officers after the end of apartheid, he might argue that he was only following orders and should therefore not be blamed for what he did.
It would be interesting to see to what extent Simelane blames members of the previous administration for his troubles and what facts he will be prepared to put before the subcommittee to protect himself. Could we see some new revelations about what exactly happened after then President Thabo Mbeki decided to suspend Vusi Pikoli because he wanted to arrest Jackie Selebi?
Probably not. But this inquiry into Simelane fitness reminds us that his appointment as NDPP was one of President Jacob Zuma’s most troubling acts as head of State. Whether he is ultimately cleared or not, it is unfortunate that our NDPP, who – like Caesars wife – should really be beyond reproach, finds himself in a position where he has to answer questions about whether he is a fit and proper person as required by the law.BACK TO TOP