Last week’s judgment by the Constitutional Court confirming as invalid the President’s appointment of Menzi Simelane as the National Director of Public Prosecutions (NDPP), sends a strong message about dealing with dishonesty. The court emphasised that it did not matter whether a person is dishonest and devious to a court, to a commission of enquiry, to an employer or to anyone else for that matter.

Dishonesty is dishonesty

The court stated: “Dishonesty is dishonesty wherever it occurs, and it is much worse when the person who has been dishonest is a senior government employee who gave evidence under oath”.

While the court decided that it was unnecessary to determine whether Mr Simelane is in fact a fit and proper person to be appointed as NDPP and therefore implicitly made no findings about whether he was in fact dishonest, the court criticised senior government officials for ignoring indications of dishonesty and highlighted the importance of initiating a further investigation for the purposes of determining a potential candidate’s honesty and conscientiousness.

Independent enquiry needed

We tend in our country to often try to sweep serious allegations under the carpet and in so doing, we often do more damage to the reputation of the person against whom the serious allegations are levelled. When such serious allegations are levelled, it is important to convene independent enquiries to determine the validity of the allegations. If the allegations turned out to be correct, the person implicated ought to face the consequences. If the allegations turn out to be unsubstantiated, the accused person deserves to be vindicated through an independent enquiry. More often than not, sweeping the allegations under the carpet results in greater interest from the media and speculative reporting. The media cannot be blamed for this. Instead, those that choose not to deal with these allegations through a proper independent enquiry need to carry the responsibility for the damage done to an individual’s reputation.

NDPP not a political appointment

The Constitutional Court’s judgment will prove to be an invaluable reference piece for the current President (and future Presidents) and those that advise them about the appointment of an NDPP. The court stated that the NDPP is not a political appointee and the NDPP needs to be “fit and proper” not simply in the President’s view but on an objective basis. The court recognised that leaving the appointment to the subjective opinion of a President was not in keeping with the Constitutional guarantee of prosecutorial independence. The court also emphasised that dishonesty is inconsistent with the hallmarks of conscientiousness and integrity that are required to properly execute the responsibilities of NDPP.

By Aslam Moosajee, director at Norton Rose South Africa.

Contact:
Candice Collins, communications specialist, Norton Rose South Africa
Tel +27 11 685 8630; Mob: +27 79 892 9369
candice.collins@nortonrose.com

Anusha Mudhai, communications co-ordinator, Norton Rose South Africa
Tel: +27 11 685 8947; Mob: +27 84 911 2535
anusha.mudhai@nortonrose.com