Johannesburg Bar: Menzi Simelane must answer ‘spy’ allegations

2013-10-31 12:28

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The Johannesburg Bar wants Advocate Menzi Simelane to answer to allegations that he had “spied” on former national director of public prosecutions, Vusi Pikoli.

This emerged during a precedent-setting application by City Press and Media24 for access to Simelane’s disciplinary hearing, which was argued last night.

The Johannesburg Bar has appointed a panel, chaired by Advocate Sias Reyneke, to conduct an investigation into charges of misconduct instituted against Simelane.

The other members of the panel are advocates Dali Mpofu and Danny Berger.

If the misconduct charges are proven, it could result in a recommendation that Simelane be disbarred.

While most of the allegations against Simelane relate to his testimony before the Ginwala Inquiry into the fitness of Pikoli to hold office, the Bar also wants Simelane to answer to an allegation that he had engaged senior National Prosecuting Authority (NPA) officials to “spy” on Pikoli.

In a surprising turn of events last night, Advocate Mike Hellens, the pro forma prosecutor who has been appointed by the Bar, told the panel that the Bar had decided that its practice of holding disciplinary enquiries behind closed doors, especially after 1994, had “simply been wrong”.

Hellens was referring to the fact that the Bar has never opened a disciplinary inquiry into an advocate to the media.

“We say that the most important principle is ... for the public to see the manner in which the Bar inquires into the propriety of the conduct of its members, so the public can trust advocates and the institution of the Bar.”

Hellens said that after an objective analysis of the law, the role of the advocates profession within our system of justice, and the interests of openness and transparency, the Bar decided it did not have an automatic right to hold closed disciplinary hearings.

But Advocate Omphemetse Mooki, appearing for Simelane, denied that there was any official resolution by the Bar to the effect that disciplinary inquiries should be opened.

“You will search in vain for such a document.”

Mooki said that a document Hellens referred to in this regard was a partial record of minutes of a meeting and not a signed resolution of the Bar council.

“You will search in vain in this documentation for a resolution by the Bar council.”

Referring to a raft of cases in which the media have been granted access on which City Press rely, Mooki said all these “decisions dealt with proceedings either in a public forum or in a public body or in a court of law.

“They were proceedings taking place that were related to the exercise of some type of a public authority.”

Mooki argued that the NPA was a private, voluntary association of advocates which was different from all the other forums City Press cited in terms of its application, and in particular, a high court decision to open the disciplinary hearing of senior prosecutor Glynnis Breytenbach.

But Berger asked Mooki if the fact that the Bar’s “members perform a very public function, are in court every day, are officers of the court and owe allegiance to court ... does that not distinguish our society (of advocates) from other private societies?”

Mooki replied that the hearing would “not be an exercise of public power, it will be an exercise of contractual (terms) among its members, as understood by its members at the time they joined the society (of advocates)”.

Mooki also said that the media had claimed the particular privilege of being representatives of the public, but said City Press did not mention that “media houses are actually businesses”.

“They sell copy, they make money and people, apparently, are quite well off selling copy.”

Mooki also said that Simelane’s right to dignity and privacy trumped the media’s rights to report on the matter in terms of the right to freedom of expression.

The matter was postponed until next Thursday.

The allegation that Simelane had asked NPA officials to spy on Pikoli was reported by the Mail & Guardian in 2008. At the time, Simelane was director-general of the department of justice.

“At the beginning of last year, Menzi Simelane asked me to spy on Vusi Pikoli and told me that either Pikoli or himself will have to go because both of them can’t stay,” the paper quoted a source as saying.

At the time, Simelane denied the allegation.

He is quoted as saying: “I never contacted any NPA staff to discuss activities of advocate Pikoli. If I met NPA staff, it is in the context of a specific matter involving the department.”

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