Simelane: Zuma’s lawyer grilled

2011-10-31 13:32

Judges of the Supreme Court of Appeal (SCA) had harsh questions for President Jacob Zuma’s lawyer this morning about his decision to appoint advocate Menzi Simelane as national director of public prosecutions (NDPP).

Zuma is arguing that he relied solely on the advice of Justice Minister Jeff Radebe to determine whether Simelane is fit and proper for the job.

The DA is challenging Zuma’s appointment of Simelane, after the Ginwala Commission found him to have been a poor witness and the Public Service Commission recommended that he faces a disciplinary hearing for misleading the commission.

The DA says Zuma did not rationally apply his mind when he appointed Simelane.When he appeared before the Ginwala Commission – which probed former NDPP Vusi Pikoli’s fitness – Simelane was still the director-general of justice.

The commission’s findings were scathing about his evidence and submissions to them.The DA originally failed in its attempt to have Simelane removed when the North Gauteng High Court ruled there was no clear test for what “fit and proper” meant and that Zuma had used his discretion to determine Simelane’s fitness.

But the SCA pushed advocate Nazeer Cassim SC, who appeared for Zuma, to explain why he had merely accepted Radebe’s motivation before appointing Simelane.

Radebe told Zuma the Ginwala report was about Pikoli, not Simelane, and that the PSC had made procedural errors by recommending steps against Simelane without hearing his side.

“If the president had concerns ... shouldn’t he have looked at the Ginwala case himself? The SCA said unkind things (about Simelane in a previous case), he (Zuma) didn’t read it. He must interrogate these matters himself?” Judge Mahomed Navsa asked Cassim.

He replied: “The minister (Radebe) assured him (Zuma) there isn’t substance to the complaint”, to which Judge John Heher responded: “How can that possibly be discharging your duty to determine fitness?”

Cassim argued it wasn’t reasonable for Zuma to disagree with Radebe and that he had to accept his ministers’ views.

Heher emphasised that the legislation required Zuma to appoint a person “that must be fit and proper, not may be”.

Judge Steven Majiedt pointed out to Cassim that his argument meant it was Radebe’s judgment call that led to Simelane’s appointment, not that of Zuma.

Heher, who was increasingly getting annoyed with Cassim’s arguments, said Zuma could have easily dealt with the matter by looking at all the relevant facts (including the Ginwala report).

“Why doesn’t the president deal with the issue? It’s very simple.”Advocate Marumo Moerane SC, for Radebe, said in terms of the Constitution the president is obliged to consult with his executive about appointments like these.

Advocate Owen Rogers SC, for the DA, said there was nothing in law that required Zuma to consult Radebe and the court was in the dark about what exactly Radebe told the president about Simelane.

“There is not one piece of paper to show what was communicated to the president by the minister,” he said.

Judgment was reserved.

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