Court not employment agency - Simelane

2010-09-15 22:07

Pretoria - National Director of Public Prosecutions Menzi Simelane has accused the Democratic Alliance of trying to turn the High Court into an employment agency.

Counsel for Simelane, David Unterhalter SC, on Wednesday asked the North Gauteng High Court in Pretoria to dismiss the DA's application to set aside President Jacob Zuma's November 2009 decision to appoint Simelane.

He submitted that the NDPP was a political appointment that rested with the president, which by its very nature had a discretionary feature.

He said the DA's requirement for the post amounted to a form of moral rigour.

"Not everybody is a Sir Thomas More and if that is the standard that is required, it would mean that very few people would qualify for the post.

"People don't generally meet those sorts of standards," he said referring to the English statesperson who is regarded as a martyr by the Roman Catholic Church after being beheaded on a charge of treason in the 1500s.

Unterhalter argued that the judgement required from the president was not as clear cut as the DA was suggesting, but involved a complex and textured value judgement about the potential and characteristics of a candidate and how he would interact with members of Cabinet, who were political appointees.

NDPP not independent

The NDPP was not just an independent satellite. One could not work effectively in the office if one could not work with the National Intelligence Agency, the head of police and Cabinet Ministers.

What the DA was suggesting, he said, was that anyone who was unhappy with the president's decisions could come to court and ask the court to see if the president got it right or wrong.

This would result in the court becoming an arbiter of whether a person was right for the job, which would turn the court into an employment agency, he said.

"Executive government is a tough, difficult environment... You need someone who can survive in that environment," he said.

Unterhalter argued that significant errors were sometimes made in such an environment and to require someone who never erred was impossible to achieve.

Unterhalter accused the DA of reaching far-fetched and unfounded conclusions that Simelane had tried to mislead the Ginwala Enquiry into his predecessor Vusi Pikoli's fitness for office and had fabricated an accusation of dishonesty against Pikoli.

Irrational decision

The DA contends Simelane was not a fit and proper person for the position and that the process followed to appoint him was irrational, resulting in an arbitrary and irrational decision to which Zuma failed properly to apply his mind.

It also contends that the appointment was made for an improper ulterior motive, namely to install an NDPP who was thought to be malleable to the executive's wishes.

Simelane's appointment followed after Pikoli's much publicised dismissal, despite a recommendation by the Ginwala Commission that he should be reinstated.

The Ginwala Commission also strongly criticised Simelane's conduct and the Public Service Commission later recommended disciplinary action against Simelane.

Simelane was appointed days after the government and Pikoli reached a settlement in terms of which Pikoli withdrew his application for reinstatement and was paid R7.5m, followed by Justice Minister Jeff Radebe's decision not to take any disciplinary steps against Simelane.

Judge Pieter van der Byl reserved judgement in the application.