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.
Menzi Simelani, the alleged Advocate which President Jacob Zuma has purported to appoint as National Director of Public Prosecutions (NDPP) seems to have contempt for the Constitution, the Constitutional Court and the law in general. He believes that the National Prosecuting Authority (NPA) is not independent and should take instructions from the Minister and the President on how to deal with politically sensitive cases. He holds the view that the NPA’s independence is not guaranteed by the Constitution, a view contradicted by the Constitution as interpreted by the Constitutional Court.
The following exchange between Wim Trengove and Simelane reveals much about how Simelane sees the role of the NPA and his lack of respect for judgements of the Constitutional Court:
TRENGOVE: I see. The NDPP also enjoys Constitutional independence in the exercise of his powers and the performance of his functions, correct?
SIMELANE: It’s been argued so, yes.
TRENGOVE: I beg your pardon.
SIMELANE: It’s been argued so, yes he does.
TRENGOVE: It’s been argued so?
TRENGOVE: No, it’s not being argued, the Constitution says so, correct?
SIMELANE: It says what?
TRENGOVE: It says that the – are you not acquainted with the Constitutional entrenchment of the independence of the NPA?
SIMELANE: I have heard arguments to that effect.
In other words, Simelane is saying here that ONE possible view (“I have heard arguments to that effect”!) is that the NPA is independent, but that he clearly does not share that view. His view was demonstrated by his drafting of a letter – later signed by the Minister of Justice – which illegally purported to order Vusi Pikoli not to proceed with the arrest of Jackie Selebi. Mr Simelane thus believes the NDPP must take orders from the Minister of Justice – even if this constitutes a criminal offence – and that the NPA does not enjoy any independence from the executive.
This belief is of course not only spectacularly wrong. It is also highly dangerous. A NDPP who holds such views is a NDPP who one fears may illegally take instructions from the Minister or the President to prosecute or not prosecute individuals (like the President himself!) depending on whether such a prosecution would be politically or personally advantageous for the President or not. If charges against President Zuma are reinstated, the President will merely have to issue an illegal order to him to drop the charges and Mr Simelane may very well obey that illegal order – unless he has changed his mind about the independence of the NPA since his humiliation before the Ginwala Inquiry.
Later on in the exchange between Trengove and Simelane, Simelane reveals his utter contempt for the Constitutional Court.
TRENGOVE: The question is do you not understand that section to be a Constitutional guarantee of independence?
SIMELANE: No I don’t read it that way.
TRENGOVE: I see. And if Mr Pikoli suggests that it is, do you say that he is wrong?
SIMELANE: I would argue with him about it’s meaning, if that’s what he said.
TRENGOVE: I see. So your fundamental difference with him is that he contends that the Constitution guarantees the independence of the NPA while you dispute it, correct?
SIMELANE: I dispute that the Constitution says so.
TRENGOVE: I see. Can I tell you what the Constitutional Court says about it Mr Simelane and I am reading from the certification judgment where the Constitutional Court certified the Constitution, in paragraph 146 in which they referred to this provision of the Constitution Section 179(4). The Constitutional Court says the following:
“Section 179(4) provides that the national legislation must ensure that the Prosecuting Authority exercises its functions without fear, favour or prejudice.”
And then please listen to the next sentence:
“There is accordingly a Constitutional guarantee of independence and any legislation or executive action inconsistent therewith would be subject to Constitutional control by the courts.”
So the Constitutional Court agrees with Mr Pikoli, Mr Simelane, correct?
SIMELANE: To it?
TRENGOVE: The Constitutional Court agreed with Mr Pikoli.
SIMELANE: Yes the Constitutional Court yes.
TRENGOVE: And it contradicts you, correct.
SIMELANE: Yes I would say it does in that respect yes.
TRENGOVE: Yes indeed. How dare you – (pause)
SIMELANE: I beg your pardon?
TRENGOVE: How dare you take on Mr Pikoli to the point of accusing him of impropriety and contending that he is (not) fit for office when in fact you haven’t read what the Constitutional Court has said about this section?
So our President has purported to appoint a NDPP who is either scandalously ignorant about the meaning of the Constitution as interpreted by the Constitutional Court (hardly likely as he had requested an opinion of Senior Counsel which must surely have included reference to the Constitutional Court case) or he is contemptuous of the Constitutional Court and believes that his own interpretation of the Constitution trumps that of the Constitutional Court (rather more likely, given that we know Mr Simelane purported to order Pikoli to stop the arrest of Selebi despite having read opinion of senior counsel that the NPA is independent).
The irresistible inference must therefore be drawn that Simelane was appointed as NDPP because he has shown himself to be contemptuous of the Constitution and the Constitutional Court and willing to lie and deceive to please his political masters. What will he do (within or outside the bounds of the law) to prevent our President from ever standing trial? Obviously our President thinks he will do almost anything (legal and illegal) to protect our President from prosecution.
No wonder the President purported to appoint him as NDPP.BACK TO TOP