Court decides on Simelane’s job

NPA boss Menzi Simelane. Photo: Sizwe Ndingane

NPA boss Menzi Simelane. Photo: Sizwe Ndingane

Published Dec 1, 2011

Share

Cape Town - In a blow to President Jacob Zuma, the appeal court ruled on Thursday that his appointment of Menzi Simelane as head of the National Prosecuting Authority was invalid.

The justice ministry said, however, that Simelane would not vacate the post pending a review of the ruling by the Constitutional Court.

“Advocate Simelane does not immediately have to vacate his post until the Constitutional Court hears the matter and decides whether to confirm the ruling or not,” justice ministry spokesperson Tlali Tlali said.

This position is based on section 167 (5) of the Constitution which gives the highest court the final say on whether a law or act of the president is unconstitutional.

A court ruling in this regard therefore has no force until it is confirmed by the Constitutional Court.

But constitutional law expert Pierre de Vos described the Supreme Court of Appeal's decision to strike down Simelane's appointment as “very sound in law” and unlikely to be overruled.

“They (the Constitutional Court Bench) might interpret the facts differently, but I would be shocked if on the legal points they came to a different conclusion.”

Fellow law expert Shadrack Gutto said the ruling created an unprecedented situation and a painful one for Zuma because he could not appeal against it.

“Once the Constitutional Court has made its ruling, the president has to abide by that. He has nowhere to go.”

De Vos concurred: “They cannot appeal. It is the end of the road.”

In a court saga that began in December 2009 when the Democratic Alliance challenged the appointment, Simelane's conduct before the Ginwala Inquiry into the fitness of his predecessor Vusi Pikoli to hold office came back to haunt him.

In a unanimous ruling, the appeal court faulted Zuma and Justice Minister Jeff Radebe for thinking that the concerns raised by the Ginwala Inquiry about Simelane's integrity were irrelevant to the decision to make him national director of public prosecutions.

“The minister and the president both made material errors of fact and law in the process leading up to the appointment of Mr Simelane. This speaks to both rationality and legality,” the court said.

The DA contended that Simelane was not a fit and proper person within the requirements for the post as stipulated by law, and that Zuma did not properly interrogate his fitness for office.

The party built its case on “the misleading and untruthful evidence” given by Simelane before the Ginwala Inquiry in 2008.

It lost in the High Court in Pretoria, but appealed with Zuma, Radebe, the office of the NDPP, and Simelane as respondents.

The SCA said the case was of national and constitutional importance and found that Zuma did not hold a proper inquiry into whether the objective requirements for the appointment were met.

“On the available evidence, the president could in any event not have reached a conclusion favourable to Mr Simelane, as there were too many unresolved questions concerning his integrity and experience.”

Judge Mahomed Navsa said Zuma should have taken care when weighing such an important decision.

“The president took a decision in respect of which he ignored relevant considerations. By doing so he misconstrued his powers and acted irrationally.

“I accept that 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, then time should be taken to get it right.”

The ruling could have dramatic consequences, De Vos warned, because by extension all decisions taken by Simelane during his tenure were invalid.

Disagreeing with Gutto on this point, he said a presumption of retrospection applied and the appeal court could have acted to mitigate the potentially chaotic effects of its decision, but did not.

Simelane's notable decisions include closing the last investigations into allegations of corruption in the arms deal.

“It can cause confusion and perhaps the Constitutional Court will deal with that when it pronounces its view.”

DA leader Helen Zille said Zuma had appointed Simelane because he wanted a “pliant” prosecutions chief, but the ruling marked a victory for constitutional democracy. Other opposition parties also welcomed the judgment.

Simelane declined to comment. - Sapa

Related Topics: