You are trying to trip up the Bar - Simelane told

2015-07-14 20:36
Menzi Simelane

Menzi Simelane

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Johannesburg - Former NPA head Menzi Simelane was told during cross-examination at his disciplinary inquiry on Tuesday that he was trying to waste the Johannesburg Bar's time and resources. 

Pro-forma advocate Mike Hellens asked Simelane what his "general attitude" was to the disciplinary process. 

"Do you believe you should co-operate and that you cannot simply play possum... that you can't lie back and have... [the Bar] prove the charges [against you]?"

Simelane's advocate Omphemetse Mooki objected to this. 

Hellens also told Simelane: "You are trying to trip up the Bar, you are playing ducks and drakes with the Bar, and are treating it [the disciplinary hearing] like a criminal case."

Simelane disagreed with this. 

The Oxford Dictionary's website describes "Ducks and drakes" as a game of skipping flat stones across water, but also to "treat frivolously". 

Hellens asked Simelane earlier why he had gone to "great lengths" to distance himself from the statement that he headed government's legal team for the Ginwala Inquiry.  

Simelane said, as director general for the department at the time, he was responsible for providing "all the necessary support" from the department's side for government's submission to the inquiry. 

Hellens then tackled a series of letters that were not made part of government's submissions to the inquiry, but were however "integral" to the matter. 

He asked Simelane if he was "intimately" involved in the preparation of government's submission. 

"I was involved," Simelane responded. 

"Were you involved in the decision to not put those letters before the commission in the government submission?" Hellens asked

"Did it not occur to you that these documents were highly relevant? Did you agree with the leaving out of the letters?"

Simelane responded: "The ultimate decision [of what went into the submission] would be with the president."

Hellens continued, "If you had led the legal team that drafted the government submissions would you have included reference to those series of letters?"

"It would have been a consideration. It would depend on the strategy," Simelane said. 

Hellens then asked him, "It would have been a question of strategy whether to let the commission know of the very serious events, starting with the communication by the president?"

Simelane said "strategy" was a factor, as well as whether the information was within the terms of reference of the inquiry. 

Amended charges

The Bar, in its amended charges, argued that Simelane failed to disclose correspondence at the Ginwala Inquiry between then president Thabo Mbeki and then justice minister Brigitte Mabandla, and the minister and former national director of public prosecutions Vusi 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 in September 2007, calling on Pikoli to stop the arrest of former police commissioner Jackie 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 inquiry. 

Hellens asked Simelane on Tuesday whether he had called Pikoli "dishonest" during the Ginwala Inquiry. 

"I said it would be 'dishonest for him' within the context of the question [asked at the inquiry," Simelane replied.

The disciplinary hearing was adjourned to Wednesday. 

The disciplinary panel, which was made up of advocates Sias Reynecke, Daniel 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 that Simelane's appointment, by President Jacob Zuma, as national director of public prosecutions was invalid. 

Simelane was appointed NPA boss 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 Pikoli and the findings of a public service commission report when appointing Simelane – rendering the president's decision "irrational".

Simelane, in his capacity as justice director general, was, according to the ruling, "intimately involved" in a dispute over the proper role of the then-national director of public prosecutions, Pikoli. and the powers and duties of the justice minister. 

Pikoli was suspended by 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.

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

Read more on:    npa  |  ndpp  |  vusi pikoli  |  menzi simelane  |  pretoria

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