ConCourt to rule on Simelane

2012-10-04 22:21
Menzi Simelane (Picture: Beeld)

Menzi Simelane (Picture: Beeld)

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Johannesburg - The Constitutional Court is scheduled to rule on Friday on the validity of the appointment of National Director of Public Prosecutions Menzi Simelane.

On 8 May, the court heard an application by the Democratic Alliance to confirm a Supreme Court of Appeal (SCA) ruling that the decision to employ Simelane was invalid.

Initially, the DA challenged President Jacob Zuma's decision to appoint Simelane in the North Gauteng High Court in Pretoria, but the application was dismissed.

This was because the court found Simelane had taken an oath to uphold the Constitution and believed in the independence of his office.

Whether he held to this belief could only be judged in the future, the court found.

The SCA reversed the decision, and found that Zuma could not have satisfied himself that Simelane was a "fit and proper" candidate, as required by the National Prosecuting Authority Act.

The SCA therefore found Zuma’s decision to be irrational, inconsistent with the Constitution and invalid.

Simelane and the minister of justice and constitutional development opposed the DA's application to the Constitutional Court, but Zuma did not.

The minister argued it was impossible to conclude that Simelane was not a fit and proper person for the job and that the decision of the SCA interfered with powers granted to the president.

He contended that SCA's decision violated the separation of powers.

At the application in May, Judge Johan Froneman questioned the rationale behind Simelane's appointment.

"My question is, why would a person who is controversial be the first and only person who is considered?"

Marumo Moerane, for the justice ministry, said the decision was the president's prerogative.

"The Constitution gives the president that power to decide, and it's a special power. If he in his wisdom decided to open this to a competitive process, open to one or two or three [candidates] he could do that.

"But if he has his eye on one person that he believes fits the bill, whether Jack or Jill or the DA disagrees with that, that is the power which the Constitution gives the president."

The report of the Ginwala commission of inquiry into Simelane's predecessor Vusi Pikoli's fitness to hold office had raised concerns about Simelane's understanding of the relationship between the justice department, where he was a director general at the time of the Pikoli events, and the National Prosecuting Authority.

Concerns about Simelane's conduct in the report were referred to the Public Service Commission, but the president and justice minister decided that they held no sway in the appointment decision.

DA counsel Owen Rogers submitted that it was not enough for the president to show after the fact that, "fortuitously", the person selected was fit and proper.

If that was the case, the president could have put names on a wall and "thrown darts at them".

Simelane is on paid leave while the matter is under consideration.

Read more on:    da  |  jacob zuma  |  menzi simelane

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