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JUSTICE Minister Jeff Radebe came under fire in the Constitutional Court when his lawyer battled to explain how a report discrediting Menzi Simelane was overlooked.
Radebe’s lawyer, Marumo Moerane SC, was left tongue-tied yesterday and at times trying to dodge a volley of questions thrown his way by the judges, as he tried to defend President Jacob Zuma’s decision to appoint Simelane as the national director of public prosecutions. He also had to explain Radebe’s failure to alert the president to the Ginwala commission findings.
Central to the volley of questions fired Moerane’s way was how Zuma elected to appoint a person shrouded in controversy in regard to how he lied to the 2008 commission set up to look into the conduct of his predecessor Vusi Pikoli.
“The Ginwala report cast doubt on the person who was appointed by the president… it was indicated that he was a person who did not have integrity or independence. It was a controversial issue. It seems to me that in those circumstances, the president would be looking for a person who is not involved in any controversy. That kind of a person would be the last one to appoint. Could you please give an explanation why no other person was considered and why this one person was the only one considered?” asked Justice Johan Froneman.
After hesitating, fiddling with his papers and a subsequent question by Chief Justice Mogoeng Mogoeng on how “Simelane’s relationship with the truth would have an impact on the suitability of his appointment”, Moerane responded by saying the commission, which was chaired by former National Assembly Speaker Frene Ginwala, was set up to only “determine the fitness of Mr Pikoli”.
“The president accepted findings in terms of Mr Pikoli; it doesn’t follow that he should accept each and every finding. The Ginwala commission didn’t raise questions about the suitability of Mr Simelane to hold office,” he said.
He also said that unlike a court of law where people lied under oath, Simelane’s case was different in that he testified before “a commission chaired by a politician”.
“The rules of evidence do not apply for those reasons, so the minister and the president do not accept those findings. If the report was made by a judge, it would have an innate higher degree of credibility,” he said.
But Justice Bess Nkabinde pulled out an extract of a high court ruling which disagreed with Moerane’s line of reasoning.
In response, Moerane said “those findings were made by an acting judge”.
Also arguing against the DA’s bid to have the Supreme Court of Appeal ruling invalidating Simelane’s appointment confirmed by the court was Simelane’s counsel, David Unterhalter SC.
He dismissed the DA’s arguments that Zuma had not applied his mind when appointing Simelane, arguing that Simelane was “fit and proper for the appointment”.
“Mr Simelane opposes the confirmation of the order on any of the other grounds advanced by the applicant. Those grounds, which go to the reasonableness of the president’s decision, cannot be entertained in a legality review,” he said.
He argued that the court should suspend the declaration of invalidity until Zuma appointed a new NDPP if it decided to uphold the SCA ruling.
Counsel for the DA, Owen Rogers SC, disagreed with Unterhalter’s argument that Zuma considered Simelane’s “work ethic, character and ability”, saying Zuma’s decision was irrational as all he had at his disposal was Simelane’s CV.
“There was a complete absence of means to check if Mr Simelane met the required standards. We are concerned with how Mr Simelane performed from 2005 going forward. The president heard nothing on the Ginwala commission and its adverse findings,” said Rogers.
Judgment was reserved.