Simelane: an appalling choice

By Branko Brkic 26 November 2009

The stuff of our worst nightmares is happening: President Zuma gave one of this country's crucial jobs to the man who believes the Executive should have power over the National Prosecuting Authority. It’s truly, genuinely, extraordinarily difficult to think of a worse choice than former justice director general, Menzi Simelane.

President Jacob Zuma came in to office promising to “strengthen the institutions of democracy”.  He wanted to “fight corruption in all its forms”, ensure that “the damage done to the justice system is undone”, to help ordinary people “find justice whenever they need it”.  By making just this one appointment, he’s undone all that.  We wanted, desperately, to trust him.  He’d made a good start, made some relatively good Constitutional Court appointments (i.e. anyone but Judge John Hlophe).  He’d poured oil on the troubled seas of the markets with the appointment of Gill Marcus, and generally behaved presidentially.

And now, he’s thrown all that away. 

Menzi Simelane is simply the wrong person to head the NPA.  He’s horribly tainted by what happened to the organisation before him.  Remember Vusi Pikoli?  The man sacked by Thabo Mbeki because he wanted to arrest Jackie Selebi?  Well, the person who made that happen, the man carrying the legal hatchet, was Simelane.  It was he who claimed that the relationship between Pikoli and the justice ministry had broken down, that Pikoli’s actions were a threat to national security.

Everything you need to know about why Simelane is the wrong person to become the new National Director of Public Prosecutions is contained in the Ginwala Report into the suspension of Pikoli. In relation to a legal opinion showing that he did not have the right to interfere with the NPA’s decisions, Frene Ginwala writes: “It is clear that the DG: Justice deliberately held these legal opinions from Adv. Pikoli and the enquiry.  By persisting in this conduct, he could have misled the enquiry”.  In other words, he wanted, and tried to commit perjury. 

She continues, just five paragraphs later, “The DG: Justice did not heed the legal advice he had sought and received, and continued to assert powers he did not have”.  So, he asked for a legal opinion, didn’t like it, and ignored it to extend his own empire, or someone else’s.  We’re talking about someone who was mucking about with the higher workings of state here. 

There’s much more in the report which is pretty damning to Simelane.  But overall his position is quite clear.  He believes the Executive should have power over the NPA.  In other words, he thinks government appointments, political appointments, should be able to order who is criminally prosecuted and who is not.  So, politicians can make political prosecutorial decisions.

The NPA Act itself is very clear on this.  It states:

“Impartiality of, and oath or affirmation by members of prosecuting authority

32. (1) (a)A member of the prosecuting authority shall serve impartially and exercise, carry out or perform his or her powers, duties and functions in good faith and without fear, favour or prejudice and subject only to the Constitution and the law.

(b) Subject to the Constitution and this Act, no organ of state and no member or employee of an organ of state nor any other person shall improperly interfere with, hinder or obstruct the prosecuting authority or any member thereof in the exercise, carrying out or performance of its, his or her powers, duties and functions.”

Simelane clearly ran afoul of section (b) when he tried to “improperly interfere with, hinder and obstruct” the investigation into Selebi. 

And this is the person now appointed by Zuma to run the agency the Constitution says must be completely impartial and independent. A person who just ignores legal advice he doesn’t like, a person who thinks he’s above the law.

For the record, Ginwala herself has told EWN, “she stands by her report”.  Good on her.  She’s been totally consistent through all of this. 

For the sake of fairness, we feel we should record the comments and justification put forward by the presidency .  The presidency says “Simelane’s experience as the administrative head of the justice and constitutional affairs department and in the legal fraternity provides him with the necessary skills and capacity to perform his functions efficiently and effectively”.  It’s other main argument is that there is no open proceeding against him.  What tosh!  It’s simply a variation on “this man can be president because he is innocent until proven guilty”.

By the way, if you’re wondering, does the NDPP have to conform to a higher standard, the answer is, yes.  As we reported on Tuesday, the Act states he must “be a fit and proper person, with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities of the office concerned”.  We believe conscientiousness and integrity are lacking in Menzi Simelane.

The reaction to this appointment has been fairly predictable.  The opposition parties howl, the ANC supports the president.  All very ho-hum.  More interesting is the reaction from prosecutors and other lawyers, as reported by Eyewitness News:  “It’s a disgraceful decision,” one senior advocate told us.  A brief flavour of some others, some prosecutors, some advocates; “it’s f***ing unbelievable”, “an April Fool’s day joke, disgraceful, a disaster” and “I’m in mourning”.  We’ve left out the names and deliberately obscured who could have said what, to protect their careers. 

Before he takes up his office on the 1 December, Simelane has to appear before a High Court Judge (not necessarily actually in court), and make this oath.

I, Menzi Simelane

do hereby swear/solemnly affirm that I will in my capacity as National Director/Deputy National Director of Public Prosecutions/Director/Deputy Director of Public Prosecutions/prosecutor, uphold and protect the Constitution and the fundamental rights entrenched therein and enforce the Law of the Republic without fear, favour or prejudice and, as the circumstances of any particular case may require, in accordance with the Constitution and the Law.

Strange things can happen when people take oaths of office.  But we don’t really hold out much hope.

We said earlier this week that this position is more important that judicial appointments, in that it actually decides which cases judges get to hear.  We also said that if Ngoako Ramathlodi was appointed the new head of prosecutions, it may be time to panic.  Simelane has us worried. Deeply worried.  We cannot see what he brings to the office that is so attractive.  Thus, we ask the question again, what’s in it for President Zuma?

By Stephen Grootes

(Grootes is an EyeWitness News reporter)

Photo: Mail & Guardian


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