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.
When is a lawyer not a “fit and proper” person and when does a lawyer not have “integrity”? If, say, a lawyer had deliberately misled an Inquiry set up by a previous President in terms of legislation, if that lawyer had drafted a letter that contained an unlawful instruction to the head of an independent body and had thus probably commited a criminal offense, if that lawyer was humiliated and his credibility absolutely destroyed under cross examination during the Inquiry, is that lawyer still a fit and proper person with integrity – as long as the President and the Minister of Justice say so?
Apparently that is what President Jacob Zuma and his lawyers believe. They contend that when our President says that somebody is “fit and proper” and is a man of integrity – regardless of the objective, proven, facts – it is legally true. In his answering affidavit in the case challenging the appointment of the purported National Director of Public Prosecutions (NDPP), Menzi Simelane, President Jacob Zuma argues that the requirements – set out in the National Prosecuting Authority Act – that the NDPP must be a fit and proper person (and hence must be a person of integrity), are subjective requirements not capable of determination by court of law.
In the following astonishing passage the President seems to reveal a disturbing belief that he IS the state and is thus not bound by the requirements of the law that are explicitly made applicable to him.
Whether a person is fit and proper to be entrusted with the responsibilities of the office concerned is my subjective decision. I am the person, as the President of the Republic, to be satisfied that the person is fit and proper. In doing so I have to take cognisance of his/her experience, conscientiousness and integrity.
This is so absurd and laughable (but also dangerously anti-democratic) that I am quite surprised that any lawyer would have risked ridicule and humiliation by offering it up in all seriousness to a court of law. The requirements set out in the NPA Act that the NDPP must be a fit and proper person and hence a person of integrity, are clearly NOT subjective in nature.
There might be room for debate about whether a person is fit and proper and has integrity, but the principle of legality – which is part of the Rule of Law – requires the President to comply with these requirements set out in the Act. The President cannot have an absolute authority to decide what these requirements should mean because then the requirements would become irrelevant and the law would make no sense. Then we have rule by dictate and not by Parliament.
To hold otherwise – as the President and his lawyers want to do – would mean the President could appoint a mass murderer as NDPP. He could appoint someone who has defrauded thousands of South Africans out of their money, who has raped his wife, who had issued fraudulent cheques or had been involved in gang activities and drug running. The assertion by the President is that any such person would be legally fit and proper merely because he says so! This is not only wrong, it is also scary. Who think up these arguments? Clearly people with a very tenuous grip on reality and no grip on the law.
What is required is to ask from the objective standpoint of a reasonable and informed person, whether there will be a perception that the NDPP is not fit and proper and is not a man of integrity. Bearing in mind the diversity in our society this means that the perception here must be based on all relevant material information: we must ask how things appear to a well-informed, thoughtful and objective observer, rather than the hypersensitive, cynical and suspicious person.
The well-informed, thoughtful and objective observer must be sensitive to the country’s complex social realities, in touch with its evolving patterns of constitutional development, and guided by the Constitution, its values and the differentiation it makes between different institutions and the need for the NDPP to act without fear, favour or prejudice (in other words, the need that the NDPP should act honestly and with integrity and not like a mafioso or a gangster).
Using this test – and not the subjective one offered by the President and his lawyers – Simelane’s appointment can surely not be said to have been lawful. This we know from the Ginwala Inquiry and the subsequent report later used by the government to justify the unlawful firing of Vusi Pikoli. (It had to pretend that Inquiry made a finding it never did to achieve this result, but it did claim at the time that it was relying on the factual findings on the Ginwala report and therefore never disputed the accuracy of the findings in the Ginwala Report – the same report it now says it is allowed to ignore.)
The President claims that everything that happened at the Ginwala Inquiry and the Report produced by Ginwala can be ignored by him because this was not a judicial commission of Enquiry but merely “a fact-finding exercise”. He does not claim that Ginwala got it wrong. Neither could he claim this, as Simelane had a chance to give his side of the story before the Inquiry and was then cross-examined by a competent lawyer who proceeded to expose him as a fraud and a liar. So the President is really claiming that he can ignore both the law and the facts – as clearly established by a legal Inquiry – because he is exercising an Executive function and because the body that made the factual findings was not judicial in nature.
This is sophistry of the highest order. The fact that the President is offering these arguments means either that he and his lawyers are so ignorant and hubristic that they think they will get away with it, or that they have realized that they are in deep trouble and that the purported appointment of Simelane cannot be defended on factual and legal grounds at all.
But let us recall why Simelane is not a man of integrity and why he is thus not fit and proper and could therefore not have been appointed lawfully as NDPP by the President.
Ginwala found that Simelane deliberately withheld legal opinions from Adv Pikoli and the Inquiry. By persisting in this conduct he misled the Inquiry. Let me quote from the Report (and remember, no one has disputed the factual accuracy of these findings – not because they were lazy but because they can’t dispute the facts, many of them admitted to by Simelane under cross-examination).
It is unacceptable that the DG: Justice elected not to heed the legal advice that he sought and obtained from senior counsel relating to the relationship between his office and the NPA. The legal advice furnished to him clearly shows that his accounting responsibilities over the NPA were limited and did not extend to the areas of responsibility that he claimed. Not only did he ignore this legal advice; he did not share it with Adv Pikoli and he also did not disclose it to the Enquiry when it was his responsibility to do so – not even after it was requested. He attempted to suppress the disclosure of the information that was of significance to the work of this Enquiry. He only acknowledged the existence of these legal opinions when they were presented to him by Adv Pikoli’s legal representatives during his cross examination.
And later on in the Report this:
I must also state that I have found the conduct of the DG: Justice highly irregular. His failure to include all the relevant material at his disposal in the original submission by Government was not consonant with the responsibilities of a senior state official furnishing information to an investigative enquiry established by the President. He had a duty to place all relevant information before the Enquiry. His testimony before the Enquiry was also not particularly helpful to me; his evidence was contradictory and I found him to be arrogant and condescending in his attitude towards Adv Pikoli.
Later on the Ginwala Report says the following about Simelane:
The DG: Justice did not heed the legal advice he had sought and received, and continued to assert powers he did not have. His personal view informed the complaints against Adv Pikoli that formed part of Government’s submissions to the Enquiry. For that reason he made statements in his evidence in chief that he was forced to retract under cross examination.
It was also only during his cross examination that it emerged that the DG: Justice prepared the letter dated 18 September 2007 from the Minister to Adv Pikoli. It is in this letter that the Minister requires Adv Pikoli to supply her with all the information that Adv Pikoli relied upon to take the legal steps to effect the arrest of and the preference of charges against the National Commissioner of Police. The letter prepared by the DG: Justice did not conform to the request from the President to the Minister dated 17 September 2007. I point out elsewhere in the report that the literal reading of the letter conveys a meaning that Adv Pikoli was to stop any plan to arrest and prosecute the National Commissioner of Police until the Minister was satisfied that there was sufficient information and evidence to do so. The Minister has since on affidavit said that it was not her intention to stop Adv Pikoli from discharging his duties or performing his functions as the NDPP. Assuming this is correct, the conduct of the DG: Justice in drafting the document in the manner it reads was reckless to say the least. The DG: Justice should have been acutely aware of the constitutional protection afforded to the NPA to conduct its work without fear, favour or prejudice. The contents of the letter were tantamount to executive interference with the prosecutorial independence of the NPA, which is recognised as a serious offence in the Act.
And yet later Ginwala further demonstrates why Simelane is not a man of integrity and hence that no reasonable person would be able to conclude that he is fit and proper:
I must express my displeasure at the conduct of the DG: Justice in the preparation of Government’s submissions and in his oral testimony which I found in many respects to be inaccurate or without any basis in fact and law. He was forced to concede during cross-examination that the allegations he made against Adv Pikoli were without foundation. These complaints related to matters such as the performance agreement between the DG: Justice and the CEO of the NPA; the NPA’s plans to expand its corporate services division; the DSO dealing with its own labour relations issues; reporting on the misappropriation of funds from the Confidential Fund of the DSO; the acquisition of new office accommodation for NPA prosecutors; and the rationalisation of the NPA.
All these complaints against Adv Pikoli were spurious, and are rejected without substance, and may have been motivated by personal issues. With regard to the original Government submission, many complaints were included that were far removed in fact and time from the reasons advanced in the letter of suspension, as well as the terms of reference. This further reflects the DG: Justice’s disregard and lack of appreciation and respect for the import for an Enquiry established by the President.
With these undisputed factual findings in the public domain one thing emerges quite clearly. When the President appointed Simelane he appointed him despite the fact that Simelane was not fit and proper as required by the law. If the President is a reasonable person, he deliberately flouted the requirements of the law. If he is not a reasonable person it must mean that he appointed Simelane for an ulterior purpose. We all know what that ulterior purpose might be.
No wonder President Zuma and his lawyers had to embarrass themselves by making absurd and untenable legal and factual assertions in this answering affidavit. When one starts on the road of unlawfulness and deceit, it is sometimes difficult to keep one’s story straight.BACK TO TOP