I forgot about the legal opinion - Simelane

2015-07-15 20:26
Menzi Simelane at his disciplinary hearing. (Ahmed Areff, News24)

Menzi Simelane at his disciplinary hearing. (Ahmed Areff, News24)

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Johannesburg - Former National Prosecuting Authority (NPA) head Menzi Simelane denied that he had lied about getting a legal opinion, saying instead that he had actually forgotten about it.

Simelane was speaking during cross examination at his disciplinary hearing on Wednesday.

Pro-forma prosecutor Mike Hellens asked Simelane about evidence he previously gave at the Ginwala inquiry about the legal opinions he had received on whether his interpretation of his role as justice director general at the time allowed him the power to act as an accounting officer of the National Prosecuting Authority. 

Then national director of public prosecutions, Vusi Pikoli, disagreed with Simelane's interpretation.  

In the transcript of the inquiry Simelane was asked by Pikoli's advocate, Wim Trengrove, "Have you taken legal advice on the question [of what are the powers of the director general in relation to the NPA]?" 

Simelane said, "No". 

Trengrove then asked later, "You said you took no legal advice on this issue?" 

Simelane responded, "No, I don't remember really getting counsel opinion on it. No in fact, yes I think you are quite right, we actually did, we got the opinion of Advocate Maleka, yes now I recall and Advocate Khoza, yes we did." 

Trengrove then said Simelane initially said he took no advice. 

"You repeated that same answer and then when you saw me turning up a document you changed your mind," Trengrove said at the time. 

Simelani questioned about exchange

On Wednesday Hellens interrogated Simelane about this exchange, saying Simelane lied about the opinion, despite it earlier being made available to Pikoli's lawyers. 

"The moment you changed your mind was when he [Trengrove] went for a document and you realised he had the opinion," Hellens said. 

"I'm saying you didn't forget, you tried to hide [it]. You disclosed the opinions to the commission, how could you have forgotten?" 

"At the time of the question, I had forgotten," Simelane said.

"At the time of the inquiry I had forgotten that I had gotten an opinion... people do forget." 

"Are you saying Mr Trengrove was lying?" Hellens asked in reference to Trengrove saying Simelane changed his mind after he "turned up the document". 

"Was he [Trengrove] misleading the [Ginwala] commission?" 

"How you are describing what he did was incorrect. My recollection was that documents were in his hand," Simelane said. 

Investigating misconduct by Simelane

A disciplinary panel, which was made up of advocates Sias Reynecke, Daniel Berger and Dali Mpofu, was appointed by the Johannesburg Bar to conduct an investigation into charges of misconduct instituted against Simelane.

The Bar, in its amended charges, argued that Simelane denied obtaining a written legal opinion on his interpretation, as opposed to Pikoli's interpretation relating to the director general's powers, and only admitted to it once it became apparent that Pikoli's legal representatives were in possession of the opinion - which contradicted his own views. 

It also said he failed to disclose correspondence between then president Thabo Mbeki and then justice minister Brigitte Mabandla, and the minister and Pikoli that provided evidence that the minister sought to interfere in the prosecutorial independence of the NPA. 

This included a letter drafted by Simelane, from the minister to Pikoli from September 2007, calling on Pikoli to stop the arrest of former national police commissioner Jackie Selebi "until the minister has been appraised of all the evidence".

It argued that the documents and facts were relevant to Pikoli's suspension, which Simelane conceded under oath, but failed to include them in government's submission to the inquiry. 

The disciplinary hearing, which began on Monday and was set down for three days, was adjourned on Wednesday afternoon. 

The return date of the hearing was still to be decided. 

The Ginwala inquiry

In 2012, the Constitutional Court found that Simelane's appointment as national director of public prosecutions, by President Jacob Zuma, was invalid. 

Simelane was appointed NPA boss in 2009.

The Constitutional Court found Zuma had failed to consider evidence before him, including the findings of the Ginwala inquiry into the conduct of Pikoli and the findings of a public service commission report when appointing Simelane – rendering the president's decision "irrational".

Simelane, in his capacity as director general of justice, was, according to the ruling, "intimately involved" in a dispute over the proper role of Pikoli and the powers and duties of the justice minister. 

Pikoli was suspended by Mbeki in September 2007 after pursuing corruption charges against then-police commissioner Selebi. On October 3, Mbeki instituted a commission of inquiry, chaired by former speaker of Parliament, Frene Ginwala, into Pikoli's fitness to hold office.

Simelane had presented the government's evidence, under oath, at the commission. Ginwala subsequently criticised "with some severity" Simelane's approach to giving evidence and its credibility.

- Online comments on stories relating to this hearing have been disabled, as per an order of the disciplinary inquiry in which media houses were granted access to the hearing.

Read more on:    npa  |  menzi simelane  |  pretoria  |  politics

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