Attempts to justify Simelane are disingenuous

Minister Jeff Radebe's attempts to justify the appointment of Menzi Simelane and dismiss the findings contained in the Ginwala Inquiry are wrongheaded and disingenuous. The appointed National Director of Public Prosecutions (NDPP) should be beyond reproach, and Adv Simelane's appointment certainly has been a very bad start.

The Minister today, tried to argue that the Ginwala Inquiry was "fact finding" and not a judicial commission and thus does not have a standing in law. He defended Simelane's actions before the inquiry, attributing his failure to answer direct questions down to a "common human experience". Importantly, he also argued that Simelane had not breached the Public Service Commissions code of conduct, was "a fit and proper person" to lead the NPA and that the "attack on the credibility of Simelane was without foundation".

Minister Radebe can pontificate about the legal standing of the Ginwala Inquiry until he is blue in the face, but his time would be better spent explaining the following exchange between Senior Council Advocate Trengove and Simelane during the inquiry (see transcript here):

TRENGOVE: The question is do you not understand that section to be a Constitutional guarantee of independence?

SIMELANE: No I don't read it that way.

TRENGOVE: I see. And if Mr Pikoli suggests that it is, do you say that he is wrong?

SIMELANE: I would argue with him about it's meaning, if that's what he said.

TRENGOVE: I see. So your fundamental difference with him is that he contends that the Constitution guarantees the independence of the NPA while you dispute it, correct?

SIMELANE: I dispute that the Constitution says so.

TRENGOVE: I see. Can I tell you what the Constitutional Court says about it? Mr Simelane and I am reading from the certification judgment where the Constitutional Court certified the Constitution, in paragraph 146 in which they referred to this provision of the Constitution Section 179(4). The Constitutional Court says the following:

"Section 179(4) provides that the national legislation must ensure that the Prosecuting Authority exercises its functions without fear, favour or prejudice."

And then please listen to the next sentence:

"There is accordingly a Constitutional guarantee of independence and any legislation or executive action inconsistent therewith would be subject to Constitutional control by the courts."

So the Constitutional Court agrees with Mr Pikoli, Mr Simelane, correct?

SIMELANE: To it?

TRENGOVE: The Constitutional Court agreed with Mr Pikoli.

SIMELANE: Yes the Constitutional Court yes.

TRENGOVE: And it contradicts you, correct.

SIMELANE: Yes I would say it does in that respect yes.

TRENGOVE: Yes indeed. How dare you - (pause)

SIMELANE: I beg your pardon?

TRENGOVE: How dare you take on Mr Pikoli to the point of accusing him of impropriety and contending that he is (not) fit for office when in fact you haven't read what the Constitutional Court has said about this section?

That exchange makes it absolutely crystal clear that Menzi Simelane does not recognise the constitutional fact that the National Prosecuting Authority is independent from the state. This exchange is the most critical piece of evidence to emerge from the inquiry and it is in no way reliant on the inquiry's legal standing.

To cut a long story short, Menzi Simelane believes that the NPA should answer to the Minister of Justice. Inherent in that belief is the possibility that the minister would be able to influence whether directly or indirectly the decisions taken by the NPA with regards to which cases it should prosecute and which cases it should not.

It also suggests that Adv Simelane is executive minded and his initial position is to defer to members of the executive. This is deeply problematic because a great many of the cases before the NPA involve whether directly or indirectly, members of the ruling party. And if the ANC Executive is able to influence who the NPA pursues it will undoubtedly act to protect its own interests. Certainly this kind of behaviour has defined its attitude to date.

The Constitutional Court has set out definitively the nature of the relationship between the NPA and the government - that there is a "Constitutional guarantee of independence". This fact is not a matter of dispute or debate, it is a legal and democratic requirement and the Minister of Justice and the President are obliged to ensure it is upheld. The appointment of Adv Simelane runs against this requirement.

Statement issued by Natasha Michael, MP, Democratic Alliance deputy shadow minister of justice and constitutional development, November 30 2009

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