The order of invalidity of Menzi Simelane's appointment as National Director of Public Prosecutions (NDPP) should be set aside, the Constitutional Court heard on Tuesday.
“There should be a setting aside of the order so that the president (Jacob Zuma) can do what is required,” submitted advocate David Unterhalter, for Simelane.
Simelane's counsel, which had been appointed to defend his integrity in the matter and not the president's decision to appoint him, said finding his appointment invalid would leave all his decisions open to being overturned.
“That is going to give rise to a very serious course of litigation...,” said Unterhalter.
“If he (Simelane) has failed, let him (the president) do what is required.”
He disputed that Simelane had interfered in dramatic events between his predecessor Vusi Pikoli, former president Thabo Mbeki and former justice minister Brigitte Mabandla over the arrest of now jailed police commissioner Jackie Selebi.
Pikoli and his subordinates were about to swoop on Selebi on fraud and corruption charges, but Mbeki wanted them to hold off so he could appease security forces.
The DA has asked the court to confirm an order by the Supreme Court of Appeal that Simelane's appointment as NDPP is invalid and that it be set aside.
It has argued that Zuma did not apply his mind when appointing him, that the appointment was irrational, and that Zuma wanted a malleable official in that position.
DA counsel Owen Rogers submitted that the president had a statutory obligation to consider whether Simelane was a fit and proper candidate. It was not enough to show after the fact that, fortuitously, the person selected was fit and proper. If that was the case, the president could have put names on a wall and “thrown darts at them”.
The person had to meet the criteria for the job, and the president had to go about the appointment in a rational way. There was nothing to show that the president had done so when replacing Pikoli.
Rogers said former president Nelson Mandela had sought files and information to back up his decision to set up a commission of inquiry into the SA Rugby Football Union.
However, neither the president nor Justice Minister Jeff Radebe had disputed in lower courts that there had not been any other candidate besides Simelane.
Rogers submitted that Simelane's appointment was “inexplicable and irrational”.
He said the minister of justice told the president that a Public Service Commission report on Simelane before his appointment was flawed because he had not been given a hearing, and so it served no purpose.
The report of the 2008 Ginwala inquiry, set up to determine Pikoli's fitness to hold office, found Simelane lied, and deliberately withheld certain opinions. It found his conduct during the inquiry highly irregular and not becoming of a senior state official.
The minister told the president this should be disregarded because Simelane was not the focus of that inquiry.
“If a person lies in a case in which he is not a litigant that can be a case for a disciplinary – that is how misconduct comes about,” said Rogers.
“The president didn't apply his mind to the matter properly...,” he said.
The DA first challenged Simelane's appointment as NDPP in the High Court in Pretoria, but lost. On appeal, the SCA reversed that decision on December 1, finding that both Zuma and Radebe had made fatal errors in law.
Simelane is on paid leave while this is resolved. – Sapa