Inquiry provides Simelane an 'opportunity to clear his name'

2015-07-13 13:34
Menzi Simelane (Netwerk24)

Menzi Simelane (Netwerk24)

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Johannesburg - While there were enough facts for an application to strike former NPA boss Menzi Simelane off the roll of advocates, a disciplinary inquiry offers him a chance to clear his name, the inquiry heard on Monday. 

"On the material available to us, the society [Johannesburg Society of Advocates] could have launched an application to strike him off [the advocate's roll]," pro forma prosecutor Mike Hellens told the inquiry. 

"This hearing [however] provides an opportunity for him to clear his name. 

[But] we believe we have a very strong prima facie case [against him]."

The disciplinary inquiry panel, which was made up of advocates Sias Reynecke, Danie Berger and Dali Mpofu, was appointed by the Johannesburg Bar to conduct an investigation into charges of misconduct instituted against Simelane.

In 2012, the Constitutional Court found the appointment by President Jacob Zuma of Simelane as national director of public prosecutions was invalid. 

Simelane was appointed to the position in 2009.

The Constitutional Court found that Zuma had failed to consider evidence before him - including the findings of the Ginwala inquiry into the conduct of then-national director of public prosecutions Vusi Pikoli and the findings of a public service commission report when appointing Simelane - rendering the president's decision "irrational".

Simelane, in his capacity as the then justice director general was, according to the ruling, "intimately involved" in a dispute over the proper role of Pikoli.

Pikoli was suspended by then-president Thabo Mbeki in September 2007 after pursuing corruption charges against then-police commissioner Jackie Selebi. On October 3, Mbeki instituted a commission of inquiry, chaired by former speaker of Parliament Frene Ginwala, into Pikoli's fitness to hold office.

Simelane had presented the government's evidence, under oath, at the commission. Ginwala subsequently criticised, "with some severity", Simelane's approach to giving evidence and its credibility.

Mpofu asked Hellens on Monday how his case related to the Constitutional Court judgment. 

"Does it provide a shortcut that says merely because the Constitutional Court has made that determination, we can't have the member as an advocate or do you accept that the Constitutional Court would have been looking at different considerations to us?" he asked. 

Hellens said there were "marginally different considerations", in that while the Constitutional Court found that his appointment was invalid, the panel were being asked to determine whether he should remain an advocate. 

"[My case is to] make the hearing reach the same conclusions as the Constitutional Court independently."

Advocate Omphemetse Mooki, appearing for Simelane, said in his lengthy opening statement that the Bar was determined "come hell or high water to make an example" out of Simelane based on an anonymous complaint leveled against him. 

"Some individuals in the Bar are determined to make an example of him and in making an example of him it did not matter... as to what the facts of the matter are," he said. 

"He [Simelane] will say that this is demonstrated by the manner is which this hearing has come to pass. This process commenced with an anonymous statement made... about him."

Mooki said Simelane had asked for his accuser to be identified. 

"As we sit here he does not know who is the person behind the confidential memo. We now understand the Bar is not even going to call a witness. 

"In his [Simelane's] attempt to establish what was said about him - he directed various inquiries to the Bar - asking for minutes of meetings for the Bar... in which the decision was taken to institute these proceedings against him. 

"The Bar, I will argue... has not been forthcoming.

"The Bar has put up... documents that purport to be meetings where decisions were taken... [however] no resolutions were put up. "

Berger said the evidence before the inquiry was "based on his [Simelane's] own words".

"We have narrowed down the case to evidence now before us - which is what he said under oath in the Ginwala inquiry."

Mooki then said that a letter by then justice minister Brigitte Mabandla that Pikoli not proceed in the case against Selebi was not an "instruction" by her. 

The Bar, in its amended charges, argued that Simelane failed to disclose correspondence between the president and the minister, and the minister and Pikoli which provided evidence that the minister sought to interfere in the prosecutorial independence of the NPA. 

This included a letter drafted by Simelane, from the minister to Pikoli from September 2007, calling on Pikoli to stop the arrest of Selebi "until the minister has been appraised of all the evidence".

It argued that the documents and facts were relevant to Pikoli's suspension, which Simelane conceded under oath, but failed to include them in government's submission to the Ginwala inquiry. 

The Bar argued that Simelane denied obtaining a written legal opinion on his interpretation, as opposed to Pikoli's interpretation relating to the director general's powers, and only admitted to it once it became apparent that Pikoli's legal representatives were in possession of the opinion - which contradicted his own views. 

It argued that the only conclusion to be reached from the evidence given by Simelane at the Ginwala inquiry was "contradictory and without basis in fact or in law" and that he knowingly overstepped his area of responsibility as the director general of the department of justice "and attempted to assert powers that you did not have for an alterior [sic] purpose".

- Online comments on stories relating to this hearing have been disabled, as per a disciplinary inquiry order in which media houses were granted access to the hearing.

Read more on:    npa  |  vusi pikoli  |  menzi simelane  |  johannesburg
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