Simelane: Radebe lawyer faces difficult questions in ConCourt

2012-05-08 15:32

Constitutional Hill proved to be more of a mountain for Justice Minister Jeff Radebe’s legal team today.

Advocate Marumo Moerane, representing Radebe, had to weather difficult questions about President Jacob Zuma’s appointment of Menzi Simelane as prosecutions boss.

The questioning, which saw the court go more than thirty minutes over Moerane’s allotted time for arguments, related to the rationality of Simelane’s appointment by Zuma.

Centre stage were the “serious allegations” that had been levelled against Simelane by the Ginwala Inquiry, a presidential inquiry into the fitness of former NPA boss Vusi Pikoli to hold office.

At the time, Simelane was director-general of the department of justice.

Judge Johan Froneman asked why a person “who is controversial would be the first and only person that the president considers?”

“I have difficulty in finding a rational decision in that,” he said.

He was referring to argument by the DA that Zuma had only consulted with Radebe on Simelane and had not seriously considered any other, less controversial candidate.

Moerane responded that it was “not really any other persons’s choice, the Constitution gives the President that power”.

Moerane said: “If he has his eye on one person it is his choice to appoint that person ... whether Jack or Jill or the DA agrees with him or not.”

But Moerane, responding to a question by acting deputy chief justice Zak Yacoob, conceded that if the accusations against Simelane in the Ginwala report were correct, they would have an impact on the appointment.

Yacoob then asked if Moerane was saying the findings of the Ginwala report were accurate but that the President had chosen to appoint Simelane regardless because he “was still a very nice guy, or do they say these findings are wrong?”.

Moerane explained that the Ginwala Commission was not “a judicial commission of inquiry”.

“We are dealing here with a commission chaired by a politician, the normal rules of evidence do not apply.”

Moerane explained that Radebe and Zuma did not accept the inquiry “as gospel”.

But Owen Rogers, senior counsel for the DA, later pointed out that Zuma had, in an earlier affidavit, accepted the Ginwala Commission’s findings as “unblemished”.

The 2007 inquiry has been a central part of the DA’s challenge against Zuma’s appointment of Simelane.

This was because Simelane failed to disclose to Pikoli’s lawyers that then president Thabo Mbeki had written a letter to Minister of Justice Bridgette Mabandla about the prosecution of former police commissioner Jackie Selebi.

The letter asked her to obtain the “necessary information” about the criminal investigation into Selebi.

Simelane, however, told Pikoli’s lawyers no such document existed, only subsequently admitting he knew of the president’s letter.

David Unterhalter (SC) who appeared on behalf of Simelane said it was “permissible” for the minister to procure information about a pending prosecution because it had important policy considerations.

“It was a pretty extraordinary arrest ... with knock-on effects on how to co-ordinate security structures in the country.”

The proceedings before the Constitutional Court today come after the Supreme Court of Appeal found in December that the process followed by Zuma in a appointing Simelane was “irrational” because he ignored the Ginwala Inquiry.

In a unanimous judgment, written by Judge Mahomed Navsa, the court accepted “that the President must have a multitude of daily duties and is a very busy man”.

“However, when he is dealing with an office as important as that of the NDPP, which is integral to the rule of law and to our success as a democracy, then time should be taken to get it right.”

The DA is now asking the Constitutional Court to confirm the order setting aside Simelane’s appointment.

Radebe and Simelane are opposing this.

The Constitutional Court will deliver judgment on the matter in the next few months.

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