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Cape Town - President Jacob Zuma has been urged to exercise care in appointing a new national prosecutions chief to “ensure that the credibility and the neutrality of the National Prosecutions Authority will be restored”.
Zuma has to choose a new national director of public prosecutions (NDPP) as the Constitutional Court has confirmed a Supreme Court of Appeal finding that his appointment of Menzi Simelane was “irrational” and therefore invalid.
Simelane has been on paid leave since the appeal court’s decision in December.
The Council for the Advancement of the SA Constitution (Casac) welcomed the decision handed down by the court on Friday.
The unanimous judgment found that Zuma - acting on the advice of Justice Minister Jeff Radebe - acted irrationally by failing to heed “brightly flashing red lights” about Simelane’s integrity and credibility for a post that, by law, must be occupied by someone who can act without fear, favour or prejudice.
Those warning lights came on when the Ginwala enquiry into the fitness for office of Simelane’s predecessor, Vusi Pikoli - in whose ousting he played an instrumental role - raised serious concerns about the ability of Simelane, who was then the director-general of justice, to tell the truth.
A subsequent probe by the Public Service Commission recommended there should be a disciplinary inquiry into Simelane’s conduct, but Radebe chose not to act on this.
The Constitutional Court did not consider whether Simelane was a fit and proper person for the job. It considered only whether the decision to appoint him had been properly done.
Lawson Naidoo, from the Council for the Advancement of the SA Constitution, said the judgment confirmed that the prosecutions boss should not be a political appointee.
The judgment, handed down by Acting Deputy Chief Justice Zac Yacoob, says the post must be “non-political and non-partisan”.
Naidoo said the constitution, read with the National Prosecuting Authority Act, required Zuma to “objectively ascertain whether the appointee is a fit and proper person with due regard to their conscientiousness and integrity”. This was to ensure the NPA acted “at all times without fear, favour or prejudice”.
In deciding on the appointment of a new NDPP, Zuma had “a legal duty” to consider whether whoever he chose would ensure the NPA took decisions about whom to prosecute independently of any political considerations, Naidoo said.
Any NPA boss would need to be able to withstand “any improper interference, hindrance or obstruction of the prosecuting authority by any organ of state”.
“We call on the president to consider these factors carefully before he appoints a new NDPP to ensure that the credibility and the neutrality of the NPA will be restored.”