President Jacob Zuma has been dealt a judicial hammer blow by the Supreme Court of Appeal’s finding, in favour of the DA, that the appointment of Menzi Simelane as national director of public prosecutions (NDPP) was unconstitutional and invalid.
And in a blistering condemnation of Zuma’s decision to appoint Simelane in November 2009 – amid an outcry from opposition parties and some in the legal fraternity – Judge Mahomed Navsa, delivering a unanimous decision, reminded the other arms of the state – the legislature and the executive – they were not above the law.
The ruling comes against the backdrop of renewed debate about the role of the judiciary and its relationship to the government in terms of the separation of powers doctrine.
Zuma recently said “the powers conferred on the courts cannot be superior to the powers resulting from the political and consequently administrative mandate resulting from popular democratic elections”.
He also slammed opposition parties for trying to “co-govern” through the courts.
ANC secretary-general Gwede Mantashe told The Times “you can’t have a judiciary that seeks to arrest the functioning of government” and that the Constitutional Court appeared to be “consolidating opposition to government”.
Raising temperatures further, the cabinet announced last week that a research institution would be appointed to “review” the decisions of the Constitutional Court to determine how, if at all, they had contributed to “transformation”.
Constitutional law expert Pierre de Vos said on Thursday, in the light of such statements that the executive, “as an elected branch of government, should be allowed to do what they want to do”, it was unlikely tension between the government and the courts would “subside soon”.
He said the SCA judgment was a “serious slap in the face” for Zuma and his government and made it “difficult” for Simelane to continue in his job.
The Constitutional Court is to be called on to “confirm” the SCA order.
Justice Ministry spokesman Tlali Tlali has suggested the government may appeal.
Helen Zille, DA leader, welcomed the judgment as one of “profound significance” for the country.
She appealed to Zuma to “do the right thing” by suspending Simelane, pending any further legal processes.
But the government has dismissed such calls, with Tlali saying Simelane will “remain the NDPP” until the Constitutional Court has ruled on the appeal finding.
Paul Hoffman SC, director at the Institute for Accountability in Southern Africa, said even if the government chose to appeal what he described as the SCA’s “appeal-proof judgment”, Simelane should be removed from his post.
“(Simelane) does not belong there anyway,” he said.
“He is a political animal whose integrity has been impugned by the SCA.
“He must get a job in politics and get out of public administration.”
Asked what effect the appeal ruling would have on prosecuting decisions taken by Simelane during his tenure, Tlali said they would remain binding until the Constitutional Court reached its decision.
NPA spokesman Mthunzi Mhaga said: “The NDPP does not have comment. As far as we are concerned we still have a boss. Advocate Menzi will not comment on this.”
Mhaga referred all further enquiries to the Justice Ministry and the Presidency.
Zuma’s spokesman, Mac Maharaj’s cellphone was switched off and he could not be reached for comment.
In his judgment, Judge Navsa quoted from statements made by then-Chief Justice Ismail Mohamed to the International Commission of Jurists in Cape Town in 1998, saying: “A democratic legislature does not have the option to ignore, defy or subvert the court. It has only two constitutionally permissible alternatives, it must accept its judgment or seek an appropriate constitutional amendment if this can be done without subverting the basic foundations of the constitution itself.”
Judge Navsa added in his own words: “These statements are beyond criticism and apply equally when actions or decisions by the executive are set aside.”
The judge found that Zuma had failed to “apply his mind properly” and should not have ignored concerns raised about Simelane’s character during the Ginwala Commission of Inquiry into the fitness of then-NDPP Vusi Pikoli to hold office. In doing so, Zuma had ”misconstrued his powers and acted irrationally”.
The court has ordered that Simelane’s appointment be set aside and that Zuma, Justice and Constitutional Development Minister Jeff Radebe and Simelane pay the DA’s costs, an estimated R1 million.
Speaking at a media briefing, Zille said her party had viewed Simelane’s appointment as “part of the ‘Zumafication’ of state institutions, designed to shield the president and his network from being held accountable in law”.
She said the “inexplicable” decision by then-acting NDPP Mokotedi Mpshe to drop corruption charges against Zuma on the eve of the 2009 general elections had followed his predecessor’s refusal to bow to the wishes of the executive.
Mpshe’s predecessor, Pikoli, reached a R7.5m settlement with the government after contesting former president Thabo Mbeki’s decision to suspend him in September 2007.
His suspension came after Pikoli had refused to delay the arrest of then-national police commissioner Jackie Selebi. Pikoli said on Thursday he had “moved on” with his life and did not wish to comment.
Cope parliamentary leader Mosiuoa Lekota said the Presidency and Department of Justice should take “responsibility for this incalculable miscarriage of justice and abuse of authority”.
Koos van der Merwe, IFP MP, welcomed the SCA judgment as proof that the courts were independent of the executive. “The ANC must take note that their immoral and unconstitutional decisions will never stand, because today’s decision confirmed that no one, not even President Zuma, is above the law.” - Political Bureau