LOUISE FLANAGAN
MENZI Simelane is holding on to the job with the “awesome” powers a little longer while the government decides what to do about yesterday’s appeal court ruling which overturned his appointment.
The Supreme Court of Appeal (SCA) found that if President Jacob Zuma had given sufficient thought to Simelane’s appointment two years ago as the national director of public prosecutions (NDPP), he wouldn’t have got the job.
Yesterday, neither Simelane nor the National Prosecuting Authority (NPA) would comment.
Now, there is the problem of legal challenges to any decisions that Simelane has made in the past two years.
“All decisions he has taken have now become invalid,” said constitutional law expert Professor Pierre de Vos.
“This would apply to decisions to prosecute and decisions not to prosecute, and also to matters like the arms deal investigation.”
The Justice Ministry is considering the judgment.
“As we understand it, the order of constitutional invalidity does not become effective until it is confirmed by the Constitutional Court. This, in essence, means that the national director will continue to serve in office until the matter has been resolved at the Constitutional Court,” said Justice Ministry spokesman Tlali Tlali.
The SCA found that Simelane’s appointment was unconstitutional and invalid, and that Zuma had failed to properly take into account the findings of the Ginwala inquiry, which had strongly criticised Simelane.
They said Zuma “had less than scanty information” on which to make his decision.
“I accept the president must have a multitude of daily duties and is a very busy man. However, when he is dealing with an office as important as that of the NDPP, which is integral to the rule of law and to our success as a democracy, time should be taken to get it right,” wrote Judge Mahomed Navsa.
The NDPP has the power to institute or discontinue criminal prosecutions on behalf of the State and to set prosecution policy. The judges said “these are awesome powers” that must be exercised “with the utmost integrity”.
Zuma appointed Simelane as NDPP on November 25, 2009. The DA challenged this in the Pretoria High Court, but lost, so appealed to the SCA.
The DA cited “misleading and untruthful evidence” that Simelane gave in 2008 to the inquiry by Ginwala into the fitness for office of his predecessor, Vusi Pikoli.
The DA said Ginwala’s “minor criticisms” of Pikoli were used to remove him from office, but her stronger criticism of Simelane was ignored. The party also raised Simelane’s limited experience as a prosecutor and his badly written CV. Much of the criticisms revolved around the issues of independence that emerged in the fight between Simelane, who was director-general of the Department of Justice from 2005, and Pikoli, the NDPP at the time, over the accountability of the NPA to the Department of Justice.
Zuma said the decision was his to make. “I am the person, as the president of the republic, to be satisfied that the person is fit and proper.”