The appointment of the National Director of Public Prosecutions: Bad News - Zimbabwe: Good News

2nd December 2009 By: Denis Worrall


What follows are some of the headlines which greeted President Jacob Zuma's recent appointment of Mr Menzi Simelane as the National Director of Public Prosecutions (NDPP).  "Despicable decision, Mr President." (The Sunday Times.)  "A sick joke, JZ." (Business Day.)  "Why do you not care, Mr President?"  (The Sunday Independent.)   The Sunday Independent opened by saying:  "The appointment of discredited Menzi Simelane as National Director of Public Prosecutions appears to be more about President Jacob Zuma's desire to show us who is in charge than to serve.  It is difficult to believe that of all the eminent jurists in this country, Zuma found Simelane the most worthy of his nod."

At the heart of the issue is the fact that the National Director of Public Prosecutions is the most important appointment in terms of the South African constitution.  It is a key post in that the appointee is constitutionally prescribed to ensure "the prosecuting authority exercises its functions without fear, favour or prejudice".  This, says Paul Hoffman, one of South Africa's top constitutional experts, is the provision which "ensures the independence of the judiciary".  And at the heart of the negative response to Simelane's appointment are questions about his capacity to act independently.

First, his commitment to the ANC and to Zuma personally is a well-established fact.  Secondly, a report earlier this year relating to the Mbeki Government's handling of Simelane's predecessor Vusi Pikoli, concluded that Simelane's evidence "left much to be desired and was contradictory and without basis in fact or law."  The Commission also revealed that Simelane did not understand the role of the NDPP.  According to another source, a Constitutional Court judge had earlier found Simelane "to be fast and loose with the truth".

An attempt by the Minister of Justice Jeff Radebe at a press conference yesterday to "justify" Simelane's appointment, was simply dismissed.

What happens now?  The Democratic Alliance talks about challenging Zuma's appointment in a court of law on the basis that, while the appointment is his to make, he does not have an unfettered right.  More significantly, the Pretoria Bar Council has chosen to investigate Simelane's status as an advocate.  I am told by a former judge that it's not clear in the Constitution that the NDPP must be an advocate.  But assuming that this is not so, it nonetheless would put Simelane in a completely invidious position if the Advocates' Association decided he is unworthy to be a member and were to disbar him.


In this column we have come back time and again to Zimbabwe, and in this edition we do so with a certain amount of pleasure.  It will be recalled that SADC gave the Zimbabwe leaders - and Robert Mugabe in particular - 30-days grace to implement all the terms and conditions of the inclusive government agreement entered into by the parties in September 2008.  The deadline runs out on 6 December, and to his credit President Zuma has appointed a South African facilitation team lead by Charles Nqakula, former defence minister and current advisor to Zuma.  He is accompanied by special envoy Mac Maharaj and International Relations (previously Foreign Affairs) advisor Lindiwe Zulu.  What this indicates is that Zuma is now prepared to put pressure on the Zimbabwe leaders.

As important is the Bilateral Investment Protection Treaty which was signed between Zimbabwe and South Africa over the week-end.  It has been on the drafting table for years, and the fact that South Africa has decided to implement it now speaks volumes.  Negotiated by Dr Rob Davies, the South African Minister for Trade & Industry, the bilateral agreement which provides protection for South African investments, according to most people on the ground will open the door to a significant increase in South African investment into Zimbabwe.

As far as farmland is concerned, the initial draft provided for protection of ownership of land only after the implementation of the agreement.  In this regard it ignored a unanimous decision of the SADC tribunal which ruled that Zimbabwe's 2005 Constitutional Amendment, allowing the State to seize land from white farmers without compensation, violated international law.  As a result of the agitation of some of those farmers who are in South Africa now, and advised by Senior Advocate Jeremy Gauntlett, a South African High Court ruled last week that the Treaty had to take account of the SADC ruling.  So past victims of land grabs are not barred from seeking relief for past illegal land acquisitions as was initially feared.

Denis Worrall,
Omega Investment Research
Cape Town, South Africa

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