'Strong case against Simelane'

2009-12-11 22:02

Cape Town - The Democratic Alliance has "a very strong case" against the appointment of Menzi Simelane as the head of the National Prosecuting Authority, party leader Helen Zille said on Friday.

Zille, who filed urgent papers at the North Gauteng High Court on Friday morning to have Simelane's the appointment declared unlawful, said the NPA boss had shown that he neither "understood nor respected" the principle of prosecutorial independence.

Speaking outside the court Zille said: "We believe advocate Simelane is not a fit and proper person. He does not believe in the independence of the judiciary. It will merely become an extension of the ANC."

In a founding affidavit, DA chairperson James Selfe said the party was challenging Simelane's appointment as it was an objective jurisdictional requirement that he be a "fit and proper person" and have "experience, conscientiousness and integrity".

The party was also challenging President Jacob Zuma's decision to appoint a new national director of public prosecutions as an executive, rather than administrative action.

Inconsistent with the Constitution

"It was unlawful, irrational, arbitrary, biased, based on an ulterior motive and inconsistent with the Constitution," said Selfe.

The basis of the party's argument against Simelane was that he gave "misleading and untruthful" evidence before the Ginwala inquiry established to ascertain the fitness to hold office of his predecessor Vusi Pikoli.

Although inquiry chair Frene Ginwala said she could not support the contention that Pikoli was unfit to hold office, she expressed concern about his understanding of matters of national security. This was cited by the then president Kgalema Motlanthe - who is now deputy president - as a reason to recommend to Parliament that Pikoli be dismissed.

However, Ginwala's report was also critical of Simelane, finding that his conduct as the then-justice department director general was "irregular" and that his testimony was "contradictory and without basis in fact or in law".

The report also referred to a letter drafted by Simelane to Pikoli instructing him to stop investigating former police commissioner Jackie Selebi.

Ginwala said assuming this was correct, the contents of the letter were "tantamount to executive interference with the prosecutorial independence of the National Prosecuting Authority" and that Simelane's conduct was "reckless to say the least".

Zille said it was a "damning contradiction" that the inquiry was used to support Pikoli's axing, but that its findings had been ignored when appointing Simelane.


"The irony is that Vusi Pikoli was fired, but found [by the inquiry] to be a fit and proper person. Advocate Menzi Simelane was not, and yet he was appointed."

In his affidavit Selfe said: "Mr Simelane lacks integrity in the sense that he displays no sign of strong moral principles, or the character of uncorrupted virtue, uprightness, honesty and integrity." The DA further submitted that Zuma's decision was not reasonable or rational and did not take into account the serious allegations against Simelane, both in the public domain and in the inquiry's findings.

"The president can reasonably be suspected of bias and having taken the decision for an ulterior purpose..."

"It is no secret that the president himself and other members of the ruling alliance have found themselves on the wrong side of the prosecution services."

"In these circumstances it is submitted that the inescapable conclusion is that government seeks to tame and control the NPA." Later on Friday Zille wrote in the weekly DA newsletter she felt the party had a very strong case against Simelane and the other respondents: Zuma, the department of justice and the NPA.

"Simelane's testimony at the Ginwala Commission showed that he neither understands nor respects the constitutionally-enshrined principle of prosecutorial independence, the first legal requirement for the job.

Zille said that neither the court case nor the DA's application to the High Court to review the NPA's decision to drop the charges against Zuma had anything the do with a personal vendetta.

Subversion of the Constitution

"Our sole purpose is to stop the abuse of power and the subversion of the Constitution," she said.

"If we don't test the constitutionality of these decisions in court, we will set the precedent that powerful politicians are above the law."

Zille also said intolerance of opposing viewpoints and violent language shown by some ANC members was driving opposition parties closer together.

She said greater co-operation and solidarity could be expected among opposition parties "united in defence of the Constitution" in the coming year.

"If we work hard and pull together, I believe that we will dislodge the ANC from power at national level in the near future," she said.

"No amount of intolerance, violence and intimidation will stop us."

The matter will be heard in April.