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The Centre for Constitutional Rights welcomes the Constitutional Court's ruling in Democratic Alliance v The President of the Republic of South Africa & Others in which it upheld the Supreme Court of Appeal (SCA) decision to set aside the President's appointment of Adv Menzi Simelane as National Director of Public Prosecutions (NDPP).

Earlier this year the SCA held that the decision of the President to appoint Adv Simelane as the NDPP - purportedly in terms of section 179 of the Constitution read with sections 9 and 10 of the National Prosecuting Authority Act 32 of 1998 (the Act) - was unconstitutional and invalid. As such, the SCA reviewed the appointment and accordingly set it aside. The Constitution, however, determines that an order of constitutional invalidity of any conduct of the President must be confirmed by the Constitutional Court before it will have any force. Accordingly and in light of the SCA's declaration of unconstitutionality, the Democratic Alliance (DA) applied to the Constitutional Court to consider and confirm the SCA's order.

The Constitutional Court subsequently, in this most important judgement, pointed out that the Constitution requires that the NDPP must be appropriately qualified, although an Act of Parliament should determine the detail regarding such qualification. Considering determination of appropriate qualification, the Court supported the SCA's view that neither the Constitution nor the Act provided for a subjective test in determining whether a candidate for appointment as the NDPP is fit and proper person for appointment. Quite to the contrary - the Court held that qualification must be based on "objective jurisdictional fact" rather than a determination "in the President's view". This, according to the Court, held true regardless of the fact that the qualification requirement in terms of the Act - to be a fit and proper person - involved a value judgment. It consequently did not mean that a decision and evaluation resided within "the sole and subjective preserve of the President". The appointment of Adv Simelane by the President could thus never have been a "subjective determination, immune from objective scrutiny".

The Constitutional Court also held that the President's decision to appoint a NDPP must have been a reasonable and rational decision. Moreover, the process leading to such a decision must be equally rational. In this regard, and in dealing with the reports of the Ginwala Commission and Public Service Commission, the Court found that criticisms of the evidence and approach of Adv Simelane by the Ginwala Commission - that of integrity, competence and impartiality - as well as criticisms expressed about Adv Simelane in the Report of the Public Service Commission had "on the face of it, a sufficient basis in the evidence before it". According to the Court, the findings of the Ginwala Commission should not have been ignored by the President and the Minister of Justice & Constitutional Development and "ought to have been cause for great concern" as those findings "represented brightly flashing red lights warning of impending danger to any person involved in the process of Mr Simelane’s appointment to the position of National Director". It clearly negatively reflected on Adv Simelane's integrity and conscientiousness. More importantly, the Court found that "the difficulties" regarding Adv Simelane, which appeared in the records of the Ginwala Commission, "were and remain highly relevant to Mr Simelane’s credibility, honesty, integrity and conscientiousness". Nevertheless, according to the Court, the President ignored those findings by the Ginwala Commission and Public Service Commission. It also held that the Minister "must have been aware of this evidence but decided to ignore it and to advise the President to ignore it". As such, the Minister's advice to the President to ignore these matters and to appoint Adv Simelane in any event "was unfortunate...and thus rendered the ultimate decision irrational" although the invalidity of Adv Simelane's appointment will not by itself affect the validity of any of the decisions taken by him while in office as NDPP.

Although the Court did not make a finding on whether Adv Simelane is a fit and proper person to be appointed as the NDPP, or whether the President had an ulterior purpose in making the appointment, it nevertheless and crucially remarked that the office of the NDPP "must be non-political and non-partisan and is closely related to the function of the judiciary broadly to achieve justice and is located at the core of delivering criminal justice." Thus, although the NDPP is appointed by the President, it does not mean that the incumbent must be "a political appointee", but rather a "non-political chief executive officer directly appointed by the President".

Section 1 of the Constitution requires Government to be accountable, responsive and open. This, in principle, means that the Government - and the President - must be able to explain and justify its decisions, actions and laws to the people; respond to and be accessible to the people; and conduct its business of governance in an open and transparent manner. Moreover, the Constitution requires that those decisions and actions must be reasonable and rational and cannot merely be based on political affiliation, subjective opinion or ideological inclination.

The Court's judgement reaffirmed our constitutional values, rights and principles, the superiority of the Constitution and the importance of abiding by the provisions of the Constitution. This judgement by the Constitutional Court - the ultimate guardian of the Constitution - was a victory for the Constitution and a reaffirmation that no one, including the President, may act outside of the provisions of the Constitution.