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Papers filed over Simelane ruling

2011-12-22 20:35

Cape Town - The government on Thursday filed papers to the Constitutional Court for its impending review of the appeal court's decision to strike down Menzi Simelane's appointment as national prosecutions chief.

Justice ministry spokesperson Tlali Tlali indicated that the presidency, the ministry and Simelane would be seeking to have the ruling overturned so he could retain his post.

"All appellants have filed papers with the Constitutional Court this morning, marking the beginning of an appeal process against the Supreme Court of Appeal (SCA) judgment which declared the president's decision in appointing Advocate Simelane as the National Director of Public Prosecutions to be constitutionally invalid," Tlali said.

The Democratic Alliance, which brought the application to have Simelane's appointment set aside, said it had already filed papers to the higher court.

"We knew that in terms of the Constitution this ruling will have to be confirmed by the Constitutional Court, so we filed our papers some time ago," said James Selfe, chair of the DA's federal executive.

Unconstitutional

Selfe said the DA argued in its submission that the matter should be heard urgently because Simelane was still in his post and the ruling had created uncertainty about the validity of his decisions.

"We stressed that the matter was of an urgent nature as the particular individual is still in his post and this could give rise to challenges as to the legality of any decisions he takes."

The DA launched its court challenge to Simelane's appointment two years ago. On December 1, the appeal court in a unanimous and scathing judgment declared it not only unconstitutional but irrational.

The SCA revisited the saga surrounding the dismissal of Simelane's predecessor Vusi Pikoli and found that Zuma and Radebe failed to consider misgivings the Ginwala inquiry into the matter expressed about Simelane's integrity.

"The minister and the president both made material errors of fact and law in the process leading up to the appointment of Mr Simelane. This speaks to both rationality and legality," the court said.

It found that Zuma did not properly interrogate his fitness for office, and that even if he had, he could not have appointed him.

Unresolved questions

"On the available evidence, the president could in any event not have reached a conclusion favourable to Mr Simelane, as there were too many unresolved questions concerning his integrity and experience." Judge Mahomed Navsa said Zuma should have taken care when weighing such an important decision.

"The president took a decision in respect of which he ignored relevant considerations. By doing so he misconstrued his powers and acted irrationally."

In terms of section 167 (5) of the Constitution, the Constitutional Court has to confirm any order by another court declaring legislation or an act of the president unconstitutional.

A review is therefore a foregone fact, and the ruling has no force until such time.

The government therefore decided to keep Simelane in his post until the higher court delivers its finding.

The director of the Constitutional Court, Vic Misser, said on Thursday no date had yet been set for the review.

"It will be dealt with in the new year," he said.

Constitutional law expert Pierre de Vos said calling the government's filing of papers an appeal was a misnomer, since a review was inevitable.

"If they say they are appealing it is misleading perhaps. They have to go and submit papers anyway and what they will do is to oppose the ruling. But they are not in essence appealing."

De Vos earlier said he believed the appeal court's decision was "very sound in law" and unlikely to be overruled.