Simelane lacks integrity - DA

2010-09-13 20:06

Pretoria - Menzi Simelane lacked integrity and candour, had virtually no experience investigating and prosecuting crime and was the worst choice for national director of public prosecutions (NDPP), the Democratic Alliance argued in the North Gauteng High Court in Pretoria on Monday.

The DA has brought an application to set aside President Jacob Zuma's November 2009 decision to appoint Simelane and to declare it invalid.

It contends that Simelane is 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 the much-publicised dismissal of his predecessor Vusi Pikoli, despite a recommendation by the Ginwala Commission that Pikoli be reinstated.

The commission also 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 this, Pikoli withdrew his application for reinstatement and was paid R7.5m, and it was decided not to take disciplinary steps against Simelane.

Zuma, Justice Minister Jeff Radebe and Simelane are opposing the application, holing that, among other things, the court should not interfere in an executive decision and the DA had ulterior motives in bringing the application.

Concealed information

Owen Rogers, representing the DA, argued that Simelane tried to mislead the Ginwala Commission by not disclosing the events concerning the arrest and charging of former police commissioner Jackie Selebi in the week prior to Pikoli's suspension in 2007.

He also failed to disclose a letter in which former president Thabo Mbeki asked the then justice minister Brigitte Mabandla to obtain information from Pikoli regarding Selebi's arrest and prosecution.

He is also accused of failing to disclose and a letter (drafted by Simelane) in which Mabandla instructed Pikoli not to arrest and charge Selebi unless she was satisfied that the evidence justified this.

Rogers argued that Simelane's letter displayed a fundamental lack of appreciation for prosecutorial independence and a willingness to assist the justice minister to interfere.

"His willingness to aid the minister of justice in this interference is a particularly serious indictment, since it occurred at the instance of the president and had the effect of protecting the highest police official in the country.

"... Instead of admitting to the Ginwala Inquiry that he had made a grave error, he asserted that the letter meant merely that Pikoli should delay the arrest until he had furnished the minister of justice with the requested report.

"We submit that his explanation was dishonest.

"... If Simelane really intended the minister of justice's letter to be understood as he claimed, he displayed a conspicuous lack of ability to draft important documents - hardly a commendation for high office.

"As the Ginwala Inquiry held, Simelane's conduct was 'reckless to say the least' as the letter was 'tantamount to executive interference with the prosecutorial independence of the NPA' and on its literal meaning - which left no room for doubt - amounted to a criminal offence," he said.

He said that as Zuma did not suggest that the Ginwala Commission's findings about Simelane were wrong, it followed inevitably that he was not a fit and proper person to be appointed as NDPP.

'Lack of integrity'

Rogers argued that there was other evidence of conduct by Simelane pointing to a lack of integrity and candour.

This included a judge's scathing criticism of Simelane' abuse of his search powers when he was still the competition commissioner.

The Constitutional Court had also rebuked Simelane for failing to respond fully and frankly by stating under oath that a decision had not been made to disband the Scorpions while Cabinet approved draft legislation for the unit's dissolution the very next day.

He submitted that Simelane's denial of professional complaints and other aspersions on his integrity demonstrated a lack of candour.

Rogers argued that the court could also take into account Simelane's experience and past performance.

"Simelane's CV indicates that he was only 38 at the time of his appointment, with virtually no experience in the investigation and prosecution of crime and nothing out of the ordinary by way of tertiary qualifications.

"... During his period as director general of the department of justice, Simelane's department received qualified reports from the auditor general each year, with the list of items of concern increasing rather than diminishing. "... Finally, Simelane's CV - the only document that actually served before the president in regard to the appointment - is a remarkably shoddy piece of work, littered with spelling, grammatical and other errors.

"A slipshod document of this kind reflects poorly on the candidate's conscientiousness for the highest prosecutorial position in the country," he added.

The application continues.