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.
One should not easily call a person a liar. One should especially not call somebody a liar if the President of the country has purported to appoint that person as the head of the National Prosecuting Authority (NPA) and has endorsed that person as fit and proper, thus as possessing the necessary honesty, reliability, truthfulness and uprightness required by the law for him to be lawfully appointed by the President as National Director of Public prosecutions (NDPP).
It is an even more serious matter if that person will potentially be called upon to decide whether the President (who purported to have appointed him) should be prosecuted for fraud and corruption. One should therefore think twice before calling Menzi Simelane a liar, given the fact that he might have to decide the President’s fate. After all, if the DA is successful in having the NPA decision to withdraw charges against President Jacob Zuma set aside, Simelane will have to decide “without fear favour or prejudice” whether to proceed with the prosecution of the President.
This is therefore quite a big deal.
Unfortunately, I have to point to the following exchanges between Simelane and Advocate Wim Trengove before the Ginwala Inquiry which demonstrates that Simelane is a liar and attempted to mislead the Ginwala Inquiry. He is therefore not the kind of honest person which would be fit and proper to be appointed as NDPP:
SIMELANE: Well I am correct, because he himself would say that you are the accounting officer, so you deal with the issues.
TRENGOVE: Have you taken legal advice on the issue?
SIMELANE: It’s pretty straightforward, it doesn’t need legal advice in my view.
TRENGOVE: Won’t you answer the question. Have you taken legal advice on the question?
TRENGOVE: You said you took no legal advice on this issue, correct?
SIMELANE: No, I don’t remember really getting counsel opinion on it. No in fact, yes I think you are quite right, we actually did, we got the opinion of Adv Maleka, yes now I recall and Adv Khoza, yes we did.
TRENGOVE: Mr Simelane, you said you took no advice. You repeated that same answer and then when you saw me turning up a document you changed your mind.
SIMELANE: No you are quite wrong. What I was trying to recall was what the opinion was and it actually covered quite a lot of issues, more than this one specific issue. So I am quite correcting myself that we did actually get an opinion on a whole range of issues about the role of the NDPP. If I recall that was our opinion yes.
TRENGOVE: Yes. You were intimately involved in the preparation of the papers.
TRENGOVE: And in those papers one of the grounds, one of the accusations advanced against Mr Pikoli is precisely this difference of opinion between you and him, correct?
TRENGOVE: And yet you don’t tell the commission that you have taken legal advice on the question.
SIMELANE: Sorry, can you repeat that, I didn’t hear it nicely.
TRENGOVE: You don’t disclose to the commission that you had taken legal advice on the question.
SIMELANE: No I didn’t think there was a need to disclose that I took legal advice on the particular issue.
TRENGOVE: But how can there not be a need to disclose it to the commission when you sit with senior counsel’s opinion that contradict your own?
Ginwala was in fact rather kind to Simelane. On the basis of these and other exchanges (see full transcript here) it would be surprising if the Advocates profession do not apply to court to have Adv Simelane struck off the role of Advocates on the basis that he is no longer a fit and proper person. If the Bar Council does its job, Mr Simelane will be struck off the role which would also make him ineligible for appointment as NDPP.
Just a thought.BACK TO TOP