The content on this page is not written by Polity.org.za, but is supplied by third parties. This content does not constitute news reporting by Polity.org.za.

Today the Supreme Court of Appeal handed down judgment on the DA’s application to have the appointment of Menzi Simelane as National Director of Public Prosecutions (NDPP) set aside.

The Court found in favour of the Democratic Alliance on all counts.

We first made this application to the North Gauteng High Court in December 2009. It was on the basis that, in our view, Mr Simelane was not a “fit and proper person” for the position of NDPP as required by the Constitution and Section 9 (1) of the National Prosecuting Authority Act. We also had reason to believe that President Zuma did not give “due regard to [Mr Simelane’s] experience, conscientiousness and integrity” when making the appointment.

The North Gauteng High Court was unable to find that the President had acted irrationally in making this appointment as there was no “prescribed process.” The Court, however, did hold that Mr Simelane was a “controversial person” and that he was not “one of the most experienced persons who could have been taken into consideration for the appointment.”

The Judgment in the Supreme Court of Appeal (SCA) has today overruled this judgment of the North Gauteng High Court.

In his judgment, Judge MS Navsa of the SCA set aside the appointment of Menzi Simelane on the basis that it was “inconsistent with the Constitution and invalid.” It ordered the President, the Minister of Justice and Mr Simelane to jointly pay all costs related to the case in both courts.

Judge Navsa was scathing in his dismissal of the President’s arguments. For example, in paragraph 114, he says:

“I accept that the President is a very busy man, however, when he is dealing with an office as important as the NDPP, then time should be taken to get it right.”

In paragraph 112, the Judge states:

“The Minister and the President both made material errors of fact and law in the process leading up to the appointment of Mr Simelane.”

He also said, in paragraph 121:

“It is clear that the President did not undertake a proper enquiry...On the available evidence, the President could not have reached a conclusion favourable to Mr Simelane, as there were too many questions concerning his integrity and experience.”

This judgment is a victory for our constitutional democracy. At the time of his appointment, the DA argued that the appointment of Menzi Simelane was unconstitutional and unlawful. Given Mr Simelane’s track record as the Director-General of the Justice Department, we contended that the President’s decision to appoint him as NDPP was designed to protect the President from prosecution.

It had come out in the course of the Ginwala Inquiry that Mr Simelane had:

• Believed that the NDPP should be accountable to the Director-General of Justice and not independent as required by the Constitution;
• Disputed that the Constitution guarantees the independence of the National Prosecuting Authority (NPA);
• Stated his belief that it is legitimate for the Minister of Justice to determine whether a prosecution is in the public interest and should proceed or not. This was after it had emerged that Mr Simelane, as the Director-General of Justice, had instructed then NDPP Vusi Pikoli to stop the prosecution of Jacki Selebi.

In addition, Chair of the Inquiry, Frene Ginwala, said at the time that Mr Simelane could not be relied upon as a witness. She said that his testimony “was inaccurate, without any basis in fact and in law.”

It was therefore clear to us at the time that Mr Simelane was not a “fit and proper person” for the position of NDPP and that the President could not have considered all of the available evidence when making his decision to appoint. The Supreme Court of Appeal has now affirmed our original position.

The President, in our view, appointed Mr Simelane because he needed an NDPP that had proven to be pliant to the wishes of the Executive. This was part of the “Zumafication” of state institutions designed to shield the President and his network from being held accountable in law. It followed the suspension of Vusi Pikoli, who refused to bow to the President’s wishes, and the subsequent inexplicable decision of Acting NDPP Mokotedi Mpshes to drop the corruption charges against Jacob Zuma on the eve of the 2009 election.

That is why this judgment today is of such profound significance. It shows that our constitutional democracy can work to prevent the interference of politicians in our state institutions designed to protect people against power abuse. It shows that the opposition can play a major role to check and balance the power of the governing party.

But this is not the end of this matter. The Supreme Court of Appeal’s Judgment will now go to the Constitutional Court for confirmation and the President and Mr Simelane have the right to lodge an appeal. The case is likely to be heard in the new year.

However, given Judge Navsa’s emphatic ruling today, we hope that the President will do the right thing and relieve Mr Simelane of his duties. In his place, President Zuma must appoint somebody who will enjoy the respect and confidence of the legal profession, the judiciary and the people of South Africa.