DA's Simelane theory rubbished

2010-09-14 21:21

Pretoria - The DA's theory of an ulterior motive in the appointment of Menzi Simelane as National Director of Public Prosecutions was "simply nonsense", counsel for President Jacob Zuma argued on Tuesday.

Zuma, Justice Minister Jeff Radebe and Simelane are opposing the Democratic Alliance's application in the North Gauteng High Court in Pretoria to set aside Simelane's appointment on the basis that it was irrational, unconstitutional and unlawful.

Counsel for the president, Nazeer Cassim SC, said the DA's theory that Simelane's predecessor Vusi Pikoli was fired because he wanted to prosecute former police commissioner Jackie Selebi was "frivolous" and "simply nonsense".

He said nothing could be read into the fact that Pikoli was given a golden handshake of R7.5m following a settlement of his court application for his reinstatement.

Fit and proper

Cassim dismissed the DA's claims that Simelane was not a fit and proper person for the post, arguing that Simelane had the necessary legal qualifications and that no court of law or any other responsible authority had ever found him not to be fit and proper.

He argued that the decision not to take disciplinary steps against Simelane as recommended by the Public Service Commission was Radebe's decision, to which Zuma was bound.

"The allegations made by the Ginwala Enquiry (into Pikoli's fitness to hold office) are untested and remain allegations.

"It would be unfair to elevate such allegations into findings of fact.

"... the president acted within the powers vested in him by the law and appointed Mr Simelane whom the president considered has value to add and would fulfil the functions of the NDPP.

"That the DA is unhappy with this appointment or considers that other more qualified and able persons have been overlooked does not suffice, we submit, under the principle of legality to set aside a decision vested in the president.

"... the president, as part of his executive powers, is at liberty to appoint any individual he considers has the appropriate experience, is conscientious and possesses the elements of integrity to be entrusted with the responsibility of the office of the NDPP.

"... the people of South Africa elected the president and thereby vested their belief in the president's ability to appoint the NDPP whom he considered possessed the qualities to enable the office of the NDPP at this time of our history to fulfil the objectives of the office.

"We submit the president acted within the confines of the law and he is not answerable for his own value system when making the appointment of the NDPP," Cassim argued.


Counsel for the justice minister, Marumo Moerane SC, said the DA's obsession with Simelane's evidence at the Ginwala Enquiry was "a red herring" because Radebe had made it abundantly clear that the findings and recommendations of that enquiry were discussed at great length with Zuma.

He said the DA's theory about an improper motive for Simelane's appointment was a "threadbare theory" for which there was absolutely no basis in the real world.

The allegation that former president Thabo Mbeki had interfered in the prosecution of Selebi and tried to protect him was something the DA had "sucked out of the air" and was a lie it had propagated so often that they believed it to be true, he added.

"The prosecution of Selebi went ahead, despite the removal of Pikoli.

"The allegation is that Simelane was appointed to avoid the prosecution of President Zuma, but that decision was taken by )former acting prosecutions chief) Mokotedi Mpshe and therefore the whole theory collapses," Moerane said.

He submitted that the application was not a re-run of the Ginwala Enquiry, despite the DA's effort or relying, out of context and selectively, on the findings of the Enquiry.

He said it was clear to the minister that the termination of Pikoli's term as NDPP continued to rule the DA and that nothing could be said to placate it on the issue.

"... there is no intention of the part of government to exert improper pressure on the NDPP, or to interfere with the prosecution process or in prosecution decisions as implied by the applicant, as by so doing, the clear directives, principles and values of the Constitution, as well as the oath of office taken by him (Radebe) would be violated.

"With all due respect to the applicant, and however well meaning it may be, it can hardly contend that it represents the majority view in charging that Simelane is not sufficiently experienced, or that he does not have the conscientiousness and integrity to hold the office of NDPP.

"... the majority of the members of Parliament had no reservations regarding the termination of Pikoli's contract and the appointment of Simelane as his successor," he argued.