Simelane hung out to dry

2011-12-29 00:00

NATIONAL Prosecuting Authority boss Menzi Simelane appears to have been hung out to dry.

The presidency took a unilateral decision last week not to appeal the Supreme Court of Appeal (SCA) judgment that his appointment by President Jacob Zuma was invalid. It was a move that not only took Justice Minister Jeff Radebe by surprise, but Simelane himself. Neither was apparently consulted about the decision.

The presidency yesterday also confirmed it had placed Simelane on special leave. Simelane has been on annual leave since December 12. His deputy, advocate Nomgcobo Jiba, was appointed as acting NPA head until January 11, when he was due to return to work. This has now been extended until further notice.

This move was necessary as prosecutorial decisions taken by Simelane since the SCA’s judgment could have left the NPA open to legal challenge.

There is already speculation as to who will replace Simelane, should the Concourt confirm the SCA’s judgment that his appointment was unconstitutional and therefore invalid.

Names being bandied about include Jiba herself, while Deputy Correctional Services Minister Ngoako Ramatlhodi has again surfaced as a possible contender.

The presidency’s decision appears to have left the Justice Ministry with egg on its face. On Thursday the ministry’s spokesperson, Tlali Tlali, said the presidency, his department and Simelane would appeal the ruling. But a day later the presidency quietly withdrew its notice to appeal.

It is understood a livid Radebe demanded an explanation from Zuma’s adviser, Michael Hulley, and complained to presidential spokesperson Mac Maharaj, among others.

When the Witness contacted Tlali on Monday he said he knew nothing about a withdrawal and asked to be contacted an hour later, but then ignored further calls.

NPA spokesperson Mthunzi Mhaga was also in the dark, as was Simelane, who was on holiday overseas at the time.

Seeking clarity on the withdrawal, The Witness spent two days being stonewalled by the presidency and the justice ministry.

When Maharaj finally spoke yesterday, he confirmed that Zuma had decided to withdraw his appeal. But it was not clear why the presidency had a sudden change of heart.

Maharaj tried to soften the impact of the decision, saying that Radebe and Simelane’s appeal would go ahead as part of the highest court in the land’s confirmation process.

The SCA’s judgment must be referred to the Constitutional Court for confirmation as provided in section 172 (2) of the Constitution, which says that an order of unconstitutionality is valid only if confirmed by this court.

For legal experts Richard Calland and Shadrack Gutto, the presidency withdrawing its appeal is further evidence that it’s the end of the road for Simelane. Both were of the view that it weakened the chances of a successful appeal by Radebe and Simelane, because the president was the main party in the matter, as he appoints the NPA head.

The Democratic Alliance, which successfully challenged Simelane’s appointment in the SCA, welcomed the president’s decision to withdraw his appeal.

However, the party’s executive chairperson, James Selfe, described the decision for Radebe and Simelane to continue to do so as a gross waste of taxpayers’ money. In any event it was all academic, as the president had made clear he would abide by the SCA decision, said Selfe.

Political analyst Nhlanhla ­Mtaka believes Zuma’s gambit was a tactical move. Zuma must have realised that for too long the focus had been on issues of opposition to the judiciary. “He is in a position to close this chapter and the negative publicity that has gone with it.

“For example, he has launched the commission of inquiry into the arms deal, a further demonstration that he wants to move on to a better working relationship with the judiciary and not be seen as in constant opposition to it,” Mtaka said. Simelane’s special leave means that the country’s key security and criminal justice posts are headed by acting appointments.

National Police Commissioner Bheki Cele is currently on suspension, while state security has an acting director-general, and the National Intelligence Agency does not have a permanent head either.

Selfe said the South African government had more actors than a Shakespearean play.

“One thing there should be in the security cluster is continuity and expertise — and not have everyone in acting positions.”

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