On behalf of the Democratic Alliance (DA), I today filed an application in the North Gauteng High Court which challenges the constitutionality and lawfulness of President Zuma's decision to appoint Menzi Simelane to the position of National Director of Public Prosecutions (NDPP).

The DA contends that the President, by appointing a person who is not fit and proper to hold the office of NDPP, acted outside of his powers. In addition, by not considering the evidence in the public domain which points to Simelane's disregard for the constitutional principle of prosecutorial independence, the President's decision was not rational nor reasonable.

Instead, there is every reason to suspect that the decision was taken with the sole intent to protect powerful ANC leaders, including the President, from prosecution.

In terms of the National Prosecuting Authority (NPA) Act, a necessary pre-requisite for the person entrusted with the office of NDPP, is that he or she must be a "fit and proper person", with due regard to his or her "experience, conscientiousness and integrity".  Read with section 179(4) of the Constitution, a person's fitness for the office of the NDPP must also take account of whether he or she is a person who will fulfil the duties of the office independently and without "fear, favour or prejudice". 

Evidence drawn from the hearings of the Ginwala Commission suggests that Menzi Simelane does not meet these legal criteria.

At the hearings, Simelane made several statements which indicate that he does not understand or respect the constitutionally prescribed independence of the NPA, including:

• His stated belief that the NDPP was accountable to the Director-General of Justice;
• His argument that former NDPP Vusi Pikoli was unfit to hold office because of his refusal to account to the Director-General (despite legal opinions Simelane received to the contrary);
• Disputing that the Constitution guarantees the independence of the NPA;
• His belief that it is legitimate for the Minister of Justice to determine whether a particular prosecution is in the public interest and should proceed or not (it emerged that Simelane - on behalf of the former Minister Mabandla - had drafted the instruction to Pikoli to stop the prosecution of National Police Commissioner Jackie Selebi).

Based on this evidence, Simelane cannot be reasonably expected to fulfil the functions of the office of the NDPP without "fear, favour or prejudice".

The Ginwala Commission hearings also revealed that Simelane was prepared to employ untruths and misleading evidence to achieve political ends. For example, he failed to disclose, and then denied that he knew of, correspondence which indicated attempts by government to interfere with the NPA's investigation and prosecution of Jackie Selebi. He also denied being in possession of a legal opinion relating to the independence of the NPA because it contradicted his own stated views.

Based on this evidence, the DA contends that Simelane is not conscientious, in that he does not have an unswerving commitment to doing that which he must know is right and honourable; and that he lacks integrity, in the sense that he displays no sign of strong moral principles.

Both "conscientiousness" and "integrity" are key requirements for the position of NDPP as set out in the NPA Act.

President Zuma did not appear to consider the evidence outlined above when he appointed Simelane. Nor did he take heed of the findings of the Ginwala Commission relating to Simelane. These included that the evidence Simelane led at the Commission was "contradictory and without basis in fact or in law"; that he "deliberately withheld information"; that he "attempted to suppress the disclosure of the information"; and that his "conduct was highly irregular".

Perhaps most damning of all, the Ginwala Commission found that the letter drafted by Simelane on behalf of Minister Mabandla instructing Pikoli to desist with the prosecution of Selebi was "tantamount to executive interference with the prosecutorial independence of the NPA, which is recognised as a serious offence in the Act."

Tellingly, Simelane has taken no steps to deny or counter-act the findings of the Ginwala Commission.

The subsequent Public Service Commission (PSC) enquiry which recommended disciplinary action against Simelane was also ignored by the President. Indeed, the PSC's recommendations were rejected by the Minister of Justice Jeff Radebe, on questionable grounds, just days before Simelane's appointment.

The DA submits that the President's decision amounted to administrative action, and falls to be set aside on one or more of the following bases, in terms of the Promotion of Administrative Justice Act:

• The President's power was limited to appointing a person who was fit and proper.  The appointment of a person who does not objectively meet this standard was ultra vires the powers of the President;
• The President's decision was neither reasonable nor rational, considering the institutional importance of the prosecution services and the serious allegations against Mr. Simelane in the public domain;
• The President failed to take account of relevant information, including the evidence before the Ginwala Enquiry, the findings of the Enquiry and the recommendations of the PSC;
• The President can reasonably be suspected of bias and having taken the decision for an ulterior purpose. It is no secret that the President has found himself on the on the wrong side of the prosecution services.  The inescapable conclusion is that the government seeks to tame and control the NPA.

To the extent that the decision is not administrative in nature, it is submitted that the decision remains an exercise of public power limited by the law - and on that basis falls to be set aside on all of the above bases.

Menzi Simelane's appointment raises the spectre of an NDPP beholden and loyal to political masters. If left unchallenged, the appointment of Simelane will destroy the institutional independence and integrity of the prosecution services. It will give the ruling party untrammelled power to interfere with prosecutions, including the President's.

The DA is lodging this application today because it is our constitutional duty to challenge what we believe to be unlawful and unconstitutional conduct on the part of the President. The rule of law means that all must be bound by the law, including the President.

Our founding affidavit was lodged on behalf of the party by the chairperson of the DA's federal executive, James Selfe MP, who is also available to provide comment. A copy of our founding affidavit and notice of motion can be downloaded from the DA Media Centre.

Statement issued by Democratic Alliance leader, Helen Zille MP, December 11 2009

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