President Jacob Zuma can really be his own worst enemy. It is as if he goes out of his way to open himself to controversy, particularly when it comes to vital appointments in his government. Riah Phiyega, Menzi Simelane, Lulu Xingwana, Dina Pule, Bheki Cele, Richard Mdluli and Willem Heath are some of the names that will go down as his high-profile appointments that bombed spectacularly. He is now on the brink of filling two long-standing vacancies in crucial positions in the state, and there is already controversy over one of them. By RANJENI MUNUSAMY.
Let us recall what exactly the Constitutional Court said about the ill-fated appointment of former National Director of Public Prosecutions (NDPP) Menzi Simelane. The matter went to the Constitutional Court as Justice Minister Jeff Radebe and Simelane appealed an earlier judgment by the Supreme Court of Appeal that found President Jacob Zuma’s decision to appoint Simelane to be “irrational” and “unconstitutional”.
In a unanimous judgment, the Constitutional Court said in October 2012:
“The president relied on Mr Simelane’s curriculum vitae, which indicated broadly that he had been the Competition Commissioner for a period of a little more than five years and that he had been Director-General for a period of a little more than four years. He also relied on his personal knowledge of Mr Simelane’s personal and professional qualities, though we do not have much detail about the precise contours of this knowledge.
“The president also relied on the advice of the Minister (Radebe) to the effect that from the Minister’s personal knowledge of Mr Simelane, he was a fit and proper person to be appointed National Director. The Minister, who was familiar with both the Ginwala Commission and the Public Service Commission recommendations, advised the president, in effect, that there was no need for him to interrogate these documents and that he would advise that Mr Simelane be appointed, despite the recommendations made by the Ginwala Commission and the Public Service Commission. The basis on which the advice was given will be evaluated later in this judgment.”
The judgment went on to read: “The absence of a rational relationship between means and ends in this case is a significant factor precisely because ignoring prima facie indications of dishonesty is wholly inconsistent with the end sought to be achieved, namely the appointment of a National Director who is sufficiently conscientious and has enough credibility to do this important job effectively.
“The minister’s advice to the president to ignore these matters and to appoint Mr Simelane without more was unfortunate. The material was relevant. The president’s decision to ignore it was of a kind that coloured the rationality of the entire process, and thus rendered the ultimate decision irrational.”
In light of such a biting assessment of the president’s judgement and decision-making ability, it would stand to reason that when a new NDPP is finally appointed, extra care would be taken to ensure that the process is above board. And yet it now appears that Zuma has not learnt from his previous mistakes when it comes to crucial appointments in his administration.
City Press reported on Sunday that Zuma is set to appoint Pinetown Magistrate Stanley Gumede as head of the National Prosecuting Authority (NPA) and Advocate Guido Penzhorn as the new Special Investigating Unit (SIU) boss. Gumede is currently facing various complaints against him that are being probed by the Magistrate’s Commission, the paper said.
Gumede confirmed that he was aware of the complaints but said he did not know what they were about. He also told City Press that he was approached by Zuma’s legal adviser and personal lawyer, Michael Hulley, to lead the NPA. On cue, the Democratic Alliance’s spokeswoman on justice, Dene Smuts, issued a statement questioning the planned appointment of Gumede.
“When the President appointed Advocate Menzi Simelane as NDPP, we said the choice induced a sense of shock in view of his role at the Ginwala Enquiry into Advocate Vusi Pikoli, and questioned how he could be fit and proper when measured against the NPA Act’s requirements of conscientiousness and integrity.
“We took legal action on those exact grounds, which were upheld first by the Supreme Court of Appeal and finally by the Constitutional Court. Both courts confirmed that the fitness and propriety of a NDPP is not a matter for the subjective judgment of the sitting president, as President Zuma in essence asserted. Rather, it must rest on objectively ascertainable jurisdictional facts supporting the requirements of experience, conscientiousness and integrity,” Smuts said.
She said the fact that Gumede had unresolved complaints pending against him raised questions about his suitability for the highest prosecutorial post in the country. “The president’s views on suitability seem once again to be unacceptably subjective,” Smuts said.
Gumede’s credentials may or may not be appropriate for the position of NDPP, but if he is appointed while under investigation by the Magistrate’s Commission, he will be steeped in controversy and unnecessarily have to defend his suitability for the job. And the last thing the beleaguered NPA needs is further controversy to haunt it.
If it is true that Gumede was approached by Hulley, it raises even more questions about the integrity of the process. Apart from being the legal advisor in the presidency, Hulley is also Zuma’s personal attorney. With the spy tapes case still pending, it means that Zuma’s corruption case is still alive. If by some chance the case has to be revisited, the NPA would have to pursue it. Gumede, if appointed, will be in the untenable position of being on opposite ends of the courtroom with the man who offered him his job.
If Zuma does want Gumede for the job, it beggars belief why he does not just follow due process to ensure that he gets it without causing another high-ranking official in his government to be besieged by controversy. Such appointments should ordinarily be processed by the Minister of Justice, but it is clear that Radebe is out of the loop himself.
Following Zuma’s State of the Nation Address, when he promised that all vacant posts “at the upper echelons of the criminal justice system” would be filled, Radebe told a media briefing that the NPA and SIU heads would be appointed by the end of February. Again at the beginning of March, Radebe told the parliamentary portfolio committee on justice that the appointments were “imminent”. No explanation has since been given as to why there has been a delay. It is also inexplicable why Hulley and not Radebe was the one approaching Gumede to offer him the NPA job.
The only possible reason why this would be is that Gumede, if appointed, would be beholden directly to Zuma for his job, instead of following the normal route of accountability. This is neither a desirable nor appropriate situation, and as was evident in the fiasco involving the former Crime Intelligence head Richard Mdluli, who allegedly had a direct line to the president, the potential for abuse and wrongdoing is unlimited.
Zuma already has a trail of bad appointments haunting his presidency – from two dreadful police chiefs, Bheki Cele and now Riah Phiyega, to disgraceful Cabinet ministers like Dina Pule and Lulu Xingwana, who for some inexplicable reason he has not fired. This adds to the string of embarrassments over Simelane, Mdluli and Willem Heath, who resigned as head of the SIU after 17 days in the job. The Department of State Security is still without three directors-general for well over a year after the former intelligence heads resigned.
It would seem that the only criteria for appointment to the security cluster is fierce loyalty to Zuma, and Zuma alone, and making sure his political power is protected. The interests of the state are incidental, and this is why it is so difficult to find credible and skilled candidates to fill all the vacant positions. With so many crucial positions, particularly in the security cluster, vacant, the state is vulnerable, in a holding pattern and functioning far from its optimum.
With Zuma now four years in office as state president, he seems not to have mastered the ability to make crucial appointments appropriately and retain skill in his government. Controversy continues to beset his presidency even in instances where it is wholly unnecessary and avoidable.
But while this might be an undesirable situation for the state, it has not interfered with Zuma’s power and political muscle. Zuma remains politically invincible in the ANC, as he proved at the Manguang conference in December, even with the trail of controversy behind him. In the state, nobody has the ability to challenge or question his authority, so whatever storms have beset his administration have blown over without causing him much unease.
The Zuma state might be the most troubled in post-democracy South Africa, but the president is coasting unhindered towards another term. Controversy, it would seem, is not an impediment to Zuma, but an inevitability. DM
Photo: President Jacob Zuma (Greg Marinovich)
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