The Supreme Court of Appeal has struck down the appointment of Menzi Simelane as National Director of Public Prosecutions as unlawful and invalid. It is fervently to be hoped that the President will carefully consider the ruling and desist from the temptation to take the matter further on appeal to the Constitutional Court.
The word on the street, for what it is worth, is that Simelane is to be "re-deployed" to a political position, hopefully one that is not in the public administration and is more suited to his talents as a politician rather than as a lawyer or prosecutor.
It is not in the interests of the public that there be long running litigation over so sensitive and so central an issue, namely whether a legal and rational decision was properly taken in promoting Adv Simelane to the position he occupied: the only civil servant in the country who is accorded policy making powers in the Constitution and a functionary who (along with judges and Chapter Nine Institutions) is enjoined by the Constitution to function "without fear, favour or prejudice" [section 179(4) and (5)]. This phrase has been interpreted to mean "independently" by the Constitutional Court. In addition to this constitutional requirement, the NDPP is required by legislation to swear an oath of office in which his or her independence is solemnly re-affirmed.
Adv Simelane is, and always has been, a deployee of the national democratic revolution that drives elements of the governing alliance. His primary loyalty is to the ANC. Prior to the dissolution of the Scorpions, he took time off from his job as Director General of Justice and campaigned actively among the rank and file of the ANC in Kwazulu-Natal to ensure that the demise of the Scorpions was accepted by the majority of the members of the tripartite alliance. When he joined the NPA, months before his promotion to its leadership a short two years ago, he blithely announced to his new colleagues that he perceived his role in the prosecuting authority as one in which he would "implement the ANC's vision for the NPA".
This vision is not one that is compatible with the requirements of the Constitution. The NDR contemplates a future in which the alliance will enjoy hegemonic control of all the levers of power in society.
Not for it a pesky NDPP like the predecessor of Adv Simelane, who independently decided to prosecute the Chief of Police (with success) and Jacob Zuma (without success). Vusi Pikoli was suspended for the first of these two decisions and fired for the latter. He contested his dismissal and eventually settled on the steps of the court for a R7,5 million pay-out, one which ought not to have eventuated if there was any good reason to dismiss him. Would that Adv Pikoli could be persuaded to leave the private sector to replace Simelane; fat chance that President Zuma would even consider such a move.
Adv Simelane played a pivotal role in the suspension of Adv Pikoli. The propriety of what he did and did not do in that process was the subject of highly critical commentary in the report of the Ginwala Commission which investigated the fitness for office of Adv Pikoli. Both the integrity and the probity of Adv Simelane came under adverse scrutiny not only on that occasion but also in other litigation in which he has been involved in the course of his short career in the public service and his even shorter career in the law.
It is accordingly a matter of some moment that there should be finality about his fitness for the high office he occupies as his role in the criminal justice administration is a central one. Sight should also not be lost of the repeated qualified audits which characterised his tenure as Director General of Justice and accounting officer of that department of state. All of this is set out in extensive detail in the judgment of the Supreme Court of Appeal.
The track record he built up in the short time that he was NDPP is not without blemish. Losing the John Block bail application, purporting to restructure the NPA without the imprimatur of the Minister of Justice (who is constitutionally required to concur in prosecution policy decisions), letting Fana Hlongwane - Joe Modise's middleman in the arms deals - off the hook for no apparent reason and being complicit in the closing down of the arms deal investigations, all suggest that the worst of the DA's reservations about his fitness for office have come to pass.
In the NPA, staff morale has reached new lows and cadre deployment new highs. It is conceivable that the validity of decisions and policies put in place by Simelane could be questioned by those dissatisfied with the outcomes he has foisted upon them simply on the basis of the invalidity of his appointment.
In all these circumstances it is appropriate to recall the words of Justice Froneman, who has recently been promoted to grace the Constitutional Court Bench:
"A foundational value of our new constitutional order is the rule of law. The rule of law is an evolving concept in our jurisprudence and its full implications still need to be explored and elucidated. At its broadest level, however, it means that all legal actors, be they public or private, are bound by the law. This includes all the arms of government: executive, legislative and judicial. It also includes all private legal persons, natural or juristic. Thus the conduct of all public officials, from the highest to lowest, as well as the conduct of private persons or juristic persons, is subject to judicial scrutiny. Put in other words, the exercise of all power, public or private, is in the end subject to judicial scrutiny and adjudication. The nature of judicial adjudication (or 'judicial review') remains the same no matter who is involved, but the degree or intensity of judicial scrutiny or review may vary, depending on the kind of power exercised and the interests affected by the exercise of that power."
The public interest is affected by the exercise of the President's power to appoint an NDPP. It has now been found that this not a matter of subjective discretion, it is a matter of making a choice which is legally and rationally defensible. This is objectivity determinable under the rule of law. While Acting Judge van der Byl did not really seem to get to grips with these considerations in the court below, the Supreme Court of Appeal had no difficulty in embracing them in coming to its decision.
Judge Navsa devotes a good part of the judgment to a magisterial summary of the relevant legal and constitutional considerations that underpin our new democratic order under the rule of law. No functioning constitutional democracy can afford a chief prosecutor whose integrity and probity is the subject matter of what the judgment in his favour, now overruled, describes as a "formidable onslaught on Mr Simelane's fitness and propriety for appointment as NDPP". On appeal the misdirections of the President both on the applicable law, and on the salient facts are painstakingly analysed in an appeal proof exposition of the law.
It is important for the common weal that there be judicial finality on the invalidity of the President's decision to appoint Adv Simelane as the NDPP. Hopefully the rumours are accurate and the re-deployment in a position that is not in the public administration, not in a state owned enterprise and not in a Chapter Nine Institution will follow shortly. Cadre deployment in these institutions is illegal and unconstitutional.
Paul Hoffman SC is a director of Ifaisa (www.ifaisa.org). This article first appeared in Business Day.
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