Advocate Menzi Simelane, on leave since December when the Supreme Court of Appeal ruled his appointment as prosecutions boss was invalid, heads to the Constitutional Court on Tuesday in a fight to keep his job.
Following an application by the DA challenging President Jacob Zuma’s 2009 appointment of Simelane as national director of public prosecutions (NDPP), the court held the president had acted “irrationally” by, among other things, ignoring concerns about Simelane.
Former Speaker Frene Ginwala, who chaired the inquiry into the fitness for office of Simelane’s predecessor, Vusi Pikoli, said in her report at the end of that inquiry Simelane’s conduct “left much to be desired” and his testimony had been “contradictory and without basis in fact or law”.
Some years earlier, Simelane’s conduct during his time at the Competition Commission was criticised in a 2003 Supreme Court of Appeal judgment. And it also emerged that the General Council of the Bar was looking into Simelane’s conduct.
None of these issues, Simelane argues in documents before the Constitutional Court, was fully canvassed during the earlier court proceedings.
Instead, he argues, the Supreme Court of Appeal erred in finding that the president’s decision to appoint him could be reviewed or that he had failed to take all matters into account. Simelane also argues the Supreme Court of Appeal erred in ruling that the determination of a candidate’s fitness and propriety must be objectively determined.
“It should instead have found that in appointing the NDPP, the president exercised a value judgement that is not amenable to review,” court documents say. “It should instead have found that the president must determine subjectively whether a candidate is appropriate for appointment.”
Simelane also argues in the court documents the president has “a broad discretion” to adopt processes for the appointment as neither the constitution nor the National Prosecuting Authority Act set them out.
He declined to comment.
While the Constitutional Court case is under way, Simelane remains on leave and his post will continue to be filled in an acting capacity by advocate Nomgcobo Jiba, who has enjoyed a meteoric rise in the National Prosecuting Authority.
This is one of several vacancies filled by acting staff in the top ranks of the criminal justice portfolio which arose in controversial, often politically sensitive, circumstances.
This week the focus has relentlessly been on the police and the controversies swirling around crime intelligence boss Richard Mdluli, who is accused of misusing the secret service account, but is nevertheless widely touted as the next national police commissioner.
Meanwhile, suspended national police commissioner General Bheki Cele is awaiting the outcome of an inquiry into his fitness for office triggered by the controversy over R1.7 billion police office leases.
Lieutenant-General Nhlanhla Mkhwanazi is acting in his place.
On Friday, the cabinet noted its concern over reports of high-level cases of crime and police involvement in criminal activities.
However, Minister in the Presidency Collins Chabane said Mdluli had not been discussed specifically.
“It cannot be on (the) cabinet agenda to discuss individuals,” he said.
Other vacancies include the head of the Special Investigating Unit (SIU), following the redeployment of Willie Hofmeyr to the Asset Forfeiture Unit, the director-general of intelligence after the departure of Jeff Maqetuka and the heads of the State Security Agency and its domestic branch, Moe Shaik and Gibson Njenje respectively, amid tensions with their minister.
With the exception of Shaik, these top jobs have been vacant for five or more months.
This week, the Justice Department finally gazetted the acting appointment of advocate Nomvula Mokhatla to head the SIU, five months after Zuma’s choice, Willem Heath, resigned over his controversial statements that former president Thabo Mbeki had had a hand in prosecutions against Zuma.
In relation to the SIU, which has uncovered billions of rand in corruption and misspending, presidential spokesman Mac Maharaj said the president would make an announcement “when he’s ready”.
“It is a matter he is very well aware of,” he added.
Zuma will also have to make a decision regarding Cele, once he has the report of the board of inquiry.