Zuma accepts Simelane ruling, appoints Jiba

2011-12-28 22:15

Cape Town - President Jacob Zuma on Wednesday accepted the court ruling that struck down his appointment of Menzi Simelane as national director of public prosecutions, and named Simelane's deputy Nomgcobo Jiba to act in the post.

"President Jacob Zuma accepts the decision of the Supreme Court of Appeal which declared the appointment of the national director for public prosecutions, Menzi Simelane, invalid," his office said.

"The president has therefore decided not to appeal the decision."

A letter to the Constitutional Court signalling this decision, and obtained by Sapa, is dated December 23.

This shows that the president's U-turn came just a day after the government filed papers with the Constitutional Court last week opposing the ruling.

His choice of replacement could prove controversial.

Jiba earlier this month briefly acted as head of the special investigating unit after Willem Heath quit.

But she was abruptly replaced with Advocate Nomvula Mokhatla amid reports that Justice Minister Jeff Radebe had failed to consult Zuma before naming her. Radebe denied this.

Jiba was previously suspended from the national prosecuting authority after allegedly assisting a police investigation into her colleague and senior prosecutor Gerrie Nel.

The presidency said Simelane had been placed on special leave pending a review by the Constitutional Court of the December 1 ruling that declared his appointment by Zuma two years ago unconstitutional.

The appeal court found that Zuma and Radebe failed to consider misgivings about Simelane, expressed by the Ginwala Inquiry into the fitness of his sidelined predecessor Vusi Pikoli to hold office.

It added that even if the president had duly weighed those concerns, he could not have concluded that Simelane was suitable for the post.

"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.

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

The unanimous appeal court ruling is set for review by the Constitutional Court.

This is required in terms of section 167 (5) of the Constitution which stipulates that a finding that legislation or an act by the president is unconstitutional only comes into force once it is confirmed by the higher court.

However, last Thursday Zuma, Radebe, the National Prosecuting Authority and Simelane filed papers contesting the appeal court ruling.

Legal experts described the government's decision to term its written submissions to the court an appeal as confusing, given the fact that the law necessitates an automatic review.

The next day, Zuma served notice to the Constitutional Court that he was withdrawing his application and would not oppose confirmation of the appeal court ruling.

The Democratic Alliance, which launched the successful two-year court bid to unseat Simelane, on Wednesday welcomed the president's change of heart and said it hoped he would appoint "someone of unimpeachable character and proven experience".

Presidential spokesperson Mac Maharaj indicated that despite Zuma's decision, Radebe would seek clarity from the Constitutional Court on issues raised in the appeal court judgment.

"Mr Jeff Radebe will pursue the matter, seeking clarity on various issues in the course of the mandatory Constitutional Court certification process, with the full support of the President."

Radebe's spokesperson was not available for comment.

The Constitutional Court said last week it had yet to set a date to hear the matter.

- SAPA