Appeal court ‘crossed limits on Simelane’

THE Supreme Court of Appeal had "overstepped the boundaries" drawn by the separation of powers principle when it set aside President Jacob Zuma ’s appointment of Menzi Simelane as prosecutions head, Justice Minister Jeff Radebe said in court papers yesterday. While Mr Zuma has said he would abide by the decision of the Constitutional Court on whether he had acted irrationally when he appointed Mr Simelane, Mr Radebe is opposing confirmation of the judgment by the Constitutional Court, and appealing against it.

Mr Simelane’s appointment in 2009 was met with a storm of criticism, because he had been severely rebuked by the former speaker of the National Assembly, Frene Ginwala, in her inquiry into the fitness of his predecessor, Vusi Pikoli, to hold office. In her report, Ms Ginwala said Mr Simelane’s conduct during the inquiry was "highly irregular" and "left much to be desired".

The Democratic Alliance (DA) took the matter to court, saying Mr Simelane was not fit and proper for the job and that the appointment was irrational and unconstitutional. The DA won the case at the Supreme Court of Appeal. Mr Simelane was then placed on special leave — pending the confirmation of the appeal court’s decision by the Constitutional Court. In supplementary legal argument filed yesterday, Mr Radebe’s counsel, Marumo Moerane SC, said the point of departure in determining whether the president had acted lawfully was the constitution and not the National Prosecuting Authority (NPA) Act.

Looking at the constitutional scheme, the purpose in this case was to find a national director of public prosecutions who would be able to secure the institutional integrity of the NPA — including that it exercised its functions without fear, favour or prejudice — while "simultaneously having a constructive working relationship with the minister". The appointment of a national director was a "policy driven" decision, and the constitution "provided for a (national director) who is a political appointee", although once in office he is bound to secure the institutional independence of the NPA, Mr Moerane said.

He also argued the appeal court had not actually found that Mr Simelane was not fit and proper — rather that the president had not sufficiently enquired into the allegations. "It is only where a court positively finds that (a national director) who has been appointed by the president is not fit and proper ... that it could set aside the decision of the president as being irrational."

Should the court not agree with his argument, Mr Moerane asked it to order that the matter be sent back to the president for him to look into whether Mr Simelane was fit and proper, rather than to set aside the appointment, as the Supreme Court of Appeal had done.

Source: Business Day