Set aside Simelane order: ConCourt hears

2012-05-08 15:41
Johannesburg - The order of invalidity of Menzi Simelane's appointment as national director of public prosecutions (NDPP) should be set aside, the Constitutional Court heard on Tuesday.

"There should be a setting aside of the order so that the president [Jacob Zuma] can do what is required," submitted advocate David Unterhalter, for Simelane.

Simelane's counsel, which had been appointed to defend his integrity in the matter and not the president's decision to appoint him, said finding his appointment invalid would leave all his decisions open to being overturned.

"That is going to give rise to a very serious course of litigation...," said Unterhalter.

"If he [Simelane] has failed, let him [the president] do what is required."

He disputed that Simelane had interfered in dramatic events between his predecessor Vusi Pikoli, former president Thabo Mbeki and former justice minister Brigitte Mabandla over the arrest of now jailed police commissioner Jackie Selebi.

Irrational appointment

Pikoli and his subordinates were about to swoop on Selebi on fraud and corruption charges, but Mbeki wanted them to hold off so he could appease security forces.

The Democratic Alliance has asked the court to confirm an order by the Supreme Court of Appeal that Simelane's appointment as NDPP is invalid and that it be set aside.

It has argued that Zuma did not apply his mind when appointing him, that the appointment was irrational, and that Zuma wanted a malleable official in that position.

DA counsel Owen Rogers submitted that the president had a statutory obligation to consider whether Simelane was a fit and proper candidate. It was not enough 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".

The person had to meet the criteria for the job, and the president had to go about the appointment in a rational way. There was nothing to show that the president had done so when replacing Pikoli.

Rogers said former president Nelson Mandela had sought files and information to back up his decision to set up a commission of inquiry into the SA Rugby Football Union.

Report flawed

However, neither the president nor Justice Minister Jeff Radebe had disputed in lower courts that there had not been any other candidate besides Simelane.

Rogers submitted that Simelane's appointment was "inexplicable and irrational".

He said the minister of justice told the president that a Public Service Commission report on Simelane before his appointment was flawed because he had not been given a hearing, and so it served no purpose.

The report of the 2008 Ginwala inquiry, set up to determine Pikoli's fitness to hold office, found Simelane lied, and deliberately withheld certain opinions. It found his conduct during the inquiry highly irregular and not becoming of a senior state official.

The minister told the president this should be disregarded because Simelane was not the focus of that inquiry.

"If a person lies in a case in which he is not a litigant that can be a case for a disciplinary - that is how misconduct comes about," said Rogers.

"The president didn't apply his mind to the matter properly...," he said.

The DA first challenged Simelane's appointment as NDPP in the North Gauteng High Court in Pretoria, but lost. On appeal, the SCA reversed that decision on December 1, finding that both Zuma and Radebe had made fatal errors in law.

Simelane is on paid leave while this is resolved.
Read more on:    menzi simelane

Read News24’s Comments Policy publishes all comments posted on articles provided that they adhere to our Comments Policy. Should you wish to report a comment for editorial review, please do so by clicking the 'Report Comment' button to the right of each comment.

Comment on this story
1 comment
Add your comment
Comment 0 characters remaining

Inside News24

5 crucial questions to ask before you take that job 2014-10-30 08:00

You choose your employer just as much as they choose you. Here are 5 of the most important things you should find out about a company before you sign up.


10 facts about swimming you didn't know

This will make you want to jump right into the pool.


Where were you when you last felt alive?

Snors with a cause - creating awareness of male health
Inspiring: Rock climbing with just one leg
Watch! Skateboarders racing cyclists
Exciting new zipline for Cape Town!

Jobs in Cape Town [change area]

Property [change area]

Travel - Look, Book, Go!

Magical Massinga

Spend 5 nights at the gorgeous Massinga Beach Lodge in Mozambique and only pay for 4 from R13 220 per person sharing. Includes return flights, accommodation, transfers and romantic turndown. Book now! - shop online today

Save up to R2100 on electronics! – As seen in the catalogue

Wishing for tech gadgets this festive? Save up to R2100 on hot tech products at While stocks last. Shop now!

TV Series – 2 for R299

Loads of hot titles to choose from. Shop now!

Hot offer: Up to 50% off irons

Save up to 50% on all Philips irons. While stocks last. Shop now!

Seen something you like in our catalogue?

Find the perfect gift and save up to R5000 – As seen on the catalogue. Hurry and shop now!

Toys 4 for the price of 3

Buy 4 toys and get the cheapest FREE! Offer valid while stocks last. Shop now!

OLX Free Classifieds [change area]

Samsung Galaxy s4

Mobile, Cell Phones in South Africa, Western Cape, Cape Town. Date October 24

Best bargain in big bay

Real Estate, Houses - Apartments for Sale in South Africa, Western Cape, Cape Town. Date October 25

VW Golf 6, 1.6 Trendline (Excellent condition)

Vehicles, Cars in South Africa, Western Cape, Cape Town. Date October 25


Life can feel quite full on and overwhelming at the moment as the pressure of expectations and obligations start to pile up. more

There are new stories on the homepage. Click here to see them.


Create Profile

Creating your profile will enable you to submit photos and stories to get published on News24.

Please provide a username for your profile page:

This username must be unique, cannot be edited and will be used in the URL to your profile page across the entire network.


Location Settings

News24 allows you to edit the display of certain components based on a location. If you wish to personalise the page based on your preferences, please select a location for each component and click "Submit" in order for the changes to take affect.

Facebook Sign-In

Hi News addict,

Join the News24 Community to be involved in breaking the news.

Log in with Facebook to comment and personalise news, weather and listings.