National Freedom Party (NFP) leaders are divided over whether sanctions should be taken against the two high-ranking party leaders and councillors currently in the dock on separate murder charges.
On Friday, the provincial executive committee (PEC) expelled Mzonjani Zulu, both as party member and councillor in eThekwini, and also decided to suspend Bhungu Gwala as a member.
But the national leadership of the party was said to be against this, and has called a meeting on Tuesday where it is to discuss the issue with the provincial leaders.
Gwala is suspected of being involved in the murder of IFP supporter Celiwe Shezi at KwaMashu hostel on October 6, while Zulu was charged with the murder of another IFP supporter, Sya Dlamini.
The latter was shot dead in full view of the police outside the Ntuzuma Magistrate’s Court, allegedly by Zulu, with the incident being captured on camera.
This happened on October 15, shortly after Gwala and his two sons made their first court appearance at the court in connection with Shezi’s murder.
Apart from serving on the eThekwini council, both Gwala and Zulu are national working committee members.
But on Monday the national leadership of the party said that only the national executive committee (NEC) had the power to expel any member from the party.
“We have to remember that there is only one membership of the party,” said the NFP’s secretary-general, Nhlanhla Khubisa.
The national leaders said that lower structures of the party could only make recommendations for someone to be expelled.
Party president Zanele kaMagwaza-Msibi said while she detested violence and was in agreement with the PEC that such actions could not be condoned, she said she felt that the constitution of the party had to be followed.
“We also need to take into consideration what happened at the court [in the case of Zulu],” she said, adding that TV footage showed that Zulu had taken steps back as he was allegedly being attacked.
But Vusi Khoza, the provincial secretary, was adamant that the provincial leadership’s decision would stand.
Asked if the PEC had informed Gwala and Zulu of its decision, Khoza said letters had been written to the two men.
“We understand that they are currently in police custody, but we wrote letters and these were delivered to their home addresses,” Khoza said.
He said it was only Gwala who could appeal the decision after the conclusion of his court case, but said the same did not apply to Zulu.
“With Zulu it was clear that he shot someone in full view of the media and the police. It was not for us to consider whether he was being attacked or not; it is for the court to consider.”
Khoza said Zulu’s actions at Ntuzuma had brought the party into disrepute.
Source: IoL
Tuesday, October 23, 2012
Failing to Protect the Poor against Crime
South Africa continues to be a hazardous place for the Black poor. You don’t have to be a Marikana mineworker to die a death that is undignified, if not brutal and terrifying. The daily security concerns of the majority have never been further from the minds of politicians, who are either gripped with Mangaung mania, or – in the case of the DA - feverishly plotting the jingles and publicity stunts that they think will win them another metro city in the 2014 elections. COPE’s only recent claim to fame is its elderly MP who tried to open an aeroplane door in mid-flight, later escaping with a slap on the wrist after successfully arguing (with the support of the DA) that the combination of one alcoholic drink and one sleeping tablet made him lose his senses.
You know you are living in the most unequal country in the world when the mayor of a major metropolitan city can issue a self-congratulatory press statement – as the DA’s Patricia de Lille did recently – about the installation of less than 30 high-mast lights to be spread across numerous unlit informal settlements.
It is well known that in Cape Town’s townships and informal settlements, street lighting is almost non-existent, and as a result, that crime is rife. The complaint has been raised by residents at nearly every community meeting for years, no matter who organized the meeting or what else the meeting was supposed to be about. The DA likes to claim that communities vandalise every street light that ever gets installed but the truth is that street lighting has hardly been installed in the informal settlements and light bulbs are never replaced in the townships street lights. In Cape Town’s white suburbs, on the other hand, the DA city administration will send technicians out at 10pm to fix a streetlight bulb that died the same evening.
It emerged in a recent City of Cape Town press statement that poor, Black areas are not set to receive proper street lighting anytime soon. The DA city is instead going to rely on national government’s urban settlement development grant to install four lights here and there over the next two years. While the cost of keeping the streetlights on in white suburbs is part of the city’s normal budget, lighting the Black areas depends on donations.
The DA has already claimed that it is powerless to protect poor people on the Cape Flats from being caught in the crossfire between warring gangs, and that only the army would be able to do this. But with the re-emergence of necklacing in Khayelitsha as a community response to crime, the recent killings of four Cape Town metro police in the townships and the increase in the number of young people involved in violent gangs, it is clear that the DA is powerless on many more fronts and that things are unravelling fast in the “mother city”.
The concentration of public funds on white suburbs means the different races live totally different lives. White Capetonians can expect to wake up on the weekend and buy some beers for the night without incident. But for the past two Christmases, Khayelitsha residents have reported that police of all the different forces set up ad-hoc roadblocks on the pavements and ask residents returning from the bottle stores to show receipts for the beer they have purchased. If the residents have failed to keep their slips, or never got one, they are knocked around a bit and their alcohol confiscated. This is nothing to do with drinking in public but happens to ordinary people walking home after shopping.
More disturbingly, Black township residents are increasingly being subjected to the sight of public group killings, which increase the fear and insecurity in those areas. Several Khayelitsha residents vented their shock on Facebook just this past weekend at seeing groups of 14 year old youths killing each other in Makhaza Park.
"The park is full...it's blood everywhere. These boys are carrying weapons I have never seen in (my) life. This is too painful to see. We have been calling the police over and over but they haven't come," wrote one person. She later posted an update that two police had arrived, watched for a while and then left. "These kids are continuing", her desperate update read. Less than two hours later, another update read: "Sad to say, we have lost two young boys and others are injured...am numb".
Such horrific practices would be unthinkable in one of Cape Town’s white suburban parks. But in the townships, the government has allowed these incidents to become part of "normal" life.
It was only last week that Cape Town’s largest shack area, the Enkanini informal settlement, was provided with 452 electricity points – for 11 000 homes. How 24 families are going to share one power point is a mystery. The DA says another 2000 electricity connections will be turned on before May 2013 but that the rest of the electricity will be installed in phases. It is still not clear whether every home will eventually have its own electricity point or not. This informal settlement is situated in a highly urbanised city, which recently won the title of “World Design Capital”, yet its high school only got electricity last week!
Townships in the rest of the country are equally under-developed and crime plagued. Rural areas are also experiencing a spike in crime. The situation will continue to worsen rapidly until the DA and ANC abandon their practice of maintaining the living areas set up by apartheid’s Group Areas Act.
Unfortunately, this is unlikely to happen. The parties are two sides of the same coin. The ANC’s outdated neo-liberal economic policies were drawn up by the same international economists who wrote the policies of the DA. Successive ministers of Finance have focussed for 18 years now on pumping billions in public funds into tax breaks and incentives for overseas investors to set up factories that have never materialised.
Former president Thabo Mbeki said last week in a speech at Fort Hare university that South Africa was progressing “towards a costly disaster”, and was in a “dangerous and unacceptable situation of directionless and unguided national drift”.
This is rich coming from someone who, when he was in power, oversaw the arms deal; withheld anti-retroviral treatment from thousands of women living with HIV; set up the practice of wasting hundreds of millions of rands in public funds on hiring useless consultants for local and national government, and started the now defunct practice of paying retention bonuses to parastatal managers.
After 18 years, the DA and ANC have missed all opportunities to end apartheid in South Africa and improve the lives of the Black majority. The rapidly worsening situation, where more and more Black people are living without water, electricity, houses and schools as if in 17th century England, won’t be alleviated by either the DA or ANC. Their time has past.
Majavu is a writer concentrating on the rights of workers, oppressed people, the environment, anti-militarism and what makes a better world. She is currently studying for a Masters Degree in New Zealand.
Source: by Anna Majavu: SACSIS
You know you are living in the most unequal country in the world when the mayor of a major metropolitan city can issue a self-congratulatory press statement – as the DA’s Patricia de Lille did recently – about the installation of less than 30 high-mast lights to be spread across numerous unlit informal settlements.
It is well known that in Cape Town’s townships and informal settlements, street lighting is almost non-existent, and as a result, that crime is rife. The complaint has been raised by residents at nearly every community meeting for years, no matter who organized the meeting or what else the meeting was supposed to be about. The DA likes to claim that communities vandalise every street light that ever gets installed but the truth is that street lighting has hardly been installed in the informal settlements and light bulbs are never replaced in the townships street lights. In Cape Town’s white suburbs, on the other hand, the DA city administration will send technicians out at 10pm to fix a streetlight bulb that died the same evening.
It emerged in a recent City of Cape Town press statement that poor, Black areas are not set to receive proper street lighting anytime soon. The DA city is instead going to rely on national government’s urban settlement development grant to install four lights here and there over the next two years. While the cost of keeping the streetlights on in white suburbs is part of the city’s normal budget, lighting the Black areas depends on donations.
The DA has already claimed that it is powerless to protect poor people on the Cape Flats from being caught in the crossfire between warring gangs, and that only the army would be able to do this. But with the re-emergence of necklacing in Khayelitsha as a community response to crime, the recent killings of four Cape Town metro police in the townships and the increase in the number of young people involved in violent gangs, it is clear that the DA is powerless on many more fronts and that things are unravelling fast in the “mother city”.
The concentration of public funds on white suburbs means the different races live totally different lives. White Capetonians can expect to wake up on the weekend and buy some beers for the night without incident. But for the past two Christmases, Khayelitsha residents have reported that police of all the different forces set up ad-hoc roadblocks on the pavements and ask residents returning from the bottle stores to show receipts for the beer they have purchased. If the residents have failed to keep their slips, or never got one, they are knocked around a bit and their alcohol confiscated. This is nothing to do with drinking in public but happens to ordinary people walking home after shopping.
More disturbingly, Black township residents are increasingly being subjected to the sight of public group killings, which increase the fear and insecurity in those areas. Several Khayelitsha residents vented their shock on Facebook just this past weekend at seeing groups of 14 year old youths killing each other in Makhaza Park.
"The park is full...it's blood everywhere. These boys are carrying weapons I have never seen in (my) life. This is too painful to see. We have been calling the police over and over but they haven't come," wrote one person. She later posted an update that two police had arrived, watched for a while and then left. "These kids are continuing", her desperate update read. Less than two hours later, another update read: "Sad to say, we have lost two young boys and others are injured...am numb".
Such horrific practices would be unthinkable in one of Cape Town’s white suburban parks. But in the townships, the government has allowed these incidents to become part of "normal" life.
It was only last week that Cape Town’s largest shack area, the Enkanini informal settlement, was provided with 452 electricity points – for 11 000 homes. How 24 families are going to share one power point is a mystery. The DA says another 2000 electricity connections will be turned on before May 2013 but that the rest of the electricity will be installed in phases. It is still not clear whether every home will eventually have its own electricity point or not. This informal settlement is situated in a highly urbanised city, which recently won the title of “World Design Capital”, yet its high school only got electricity last week!
Townships in the rest of the country are equally under-developed and crime plagued. Rural areas are also experiencing a spike in crime. The situation will continue to worsen rapidly until the DA and ANC abandon their practice of maintaining the living areas set up by apartheid’s Group Areas Act.
Unfortunately, this is unlikely to happen. The parties are two sides of the same coin. The ANC’s outdated neo-liberal economic policies were drawn up by the same international economists who wrote the policies of the DA. Successive ministers of Finance have focussed for 18 years now on pumping billions in public funds into tax breaks and incentives for overseas investors to set up factories that have never materialised.
Former president Thabo Mbeki said last week in a speech at Fort Hare university that South Africa was progressing “towards a costly disaster”, and was in a “dangerous and unacceptable situation of directionless and unguided national drift”.
This is rich coming from someone who, when he was in power, oversaw the arms deal; withheld anti-retroviral treatment from thousands of women living with HIV; set up the practice of wasting hundreds of millions of rands in public funds on hiring useless consultants for local and national government, and started the now defunct practice of paying retention bonuses to parastatal managers.
After 18 years, the DA and ANC have missed all opportunities to end apartheid in South Africa and improve the lives of the Black majority. The rapidly worsening situation, where more and more Black people are living without water, electricity, houses and schools as if in 17th century England, won’t be alleviated by either the DA or ANC. Their time has past.
Majavu is a writer concentrating on the rights of workers, oppressed people, the environment, anti-militarism and what makes a better world. She is currently studying for a Masters Degree in New Zealand.
Source: by Anna Majavu: SACSIS
Wednesday, October 10, 2012
SOUTH AFRICA TO RATIFY INTERNATIONAL SOCIO-ECONOMIC RIGHTS COVENANT
South African Human Rights Groups welcome Cabinet’s approval of South Africa’s ratification of the United Nations International Covenant on Economic, Social and Cultural Rights (ICESCR)
Almost eighteen years after the South African government signed the ICESCR, Cabinet has approved that South Africa will ratify the ICESCR. This important decision to ratify, which means that the ICESCR will be legally binding, was included in a statement issued yesterday on Cabinet’s ordinary meeting held in Pretoria on 10 October 2012. The Cabinet statement describes how the ICESCR is a “key international treaty which seeks to encourage State Parties to address challenges of inequality, unemployment and poverty, which are critical to the strategic goals of governments.”
The ICESCR, together with the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration on Human Rights, constitutes the International Bill of Rights. The ICESCR has been ratifed by over 160 states since it was adopted in 1966, 48 of which are African states and 11 of which are member states of SADC. South Africa ratified the ICCPR in 1998, and its current ratification of the ICESCR will unambiguously signal its commitment to be legally bound by the full range of human rights recognised under international law. In its statement, Cabinet indicates that the recommendation to ratify the ICESCR will be tabled in Parliament for ratification in line with Section 231(2) of the South African Constitution.
Civil society organisations have been calling for many years for the South African government to ratify the ICESCR (and its Optional Protocol, which creates an individual complaints mechanism). The Community Law Centre (CLC), Socio-Economic Rights Institute of SA (SERI), Black Sash, People’s Health Movement South Africa, National Welfare Forum, Global Call to Action against Poverty South Africa (GCAP-SA) and the Studies in Poverty and Inequality Institute (SPII) see this as a great opportunity to ensure that South Africa’s jurisprudence on socio-economic rights develops in harmony with the normative standards set by the leading international treaty on these rights.
According to Jackie Dugard, executive director at the Socio-Economic Rights Institute of SA (SERI), “although this is a momentous and long-awaited decision, South Africa has for a while subscribed to the norms and standards contained in the ICESCR as it has ratified the African Charter on Human and People’s Rights of 1981, which echoes many of the socio-economic rights contained in the ICESCR. It has also included justiciable socio-economic rights in the Bill of Rights in the South African Constitution.
Prof Lilian Chenwi, associate professor at the Wits School of Law, states that “given the role played by the international community and international human rights law in the struggle against apartheid, ratification of the ICESCR will fulfil South Africa’s express desire ‘to take its rightful place as a sovereign state in the family of nations’, which is recognised in the Preamble to its Constitution.”
Rajesh Latchman, of the National Welfare Forum, states: “This move to ratify the ICESCR is an important step towards creating a harmonious roadmap for the realisation of socio-economic rights for all in SA, and it is about time too.”
While ratification of the ICESCR is significant, the ICESCR Ratification Campaign Driver Group encourages South Africa to also ratify the Optional Protocol to the ICESCR (OP-CESCR).
The Optional Protocol is an extra treaty that promotes a culture of accountability around the ICESCR, empowering vulnerable and marginalised groups to lodge individual complaints at the international level regarding violations of their socio-economic rights. The Optional Protocol is yet to come into force, as it requires 10 states to ratify it and, at present, only 8 states have done so.
It is hoped that the South African government will table the recommendation to ratify the ICESCR before Parliament and submit its accession instrument the United Nations without any further delay, and also ratify the Optional Protocol to concretise South Africa’s commitment to human rights and to bring this important international human rights instrument to life.
Issued by the ICESCR Ratification Campaign Driver Group which comprises:
Black Sash
Community Law Centre (CLC), University of the Western Cape
Global Call to Action against Poverty South Africa (GCAP-SA)
National Welfare Forum
People’s Health Movement South Africa
Socio-Economic Rights Institute of SA (SERI)
Studies in Poverty and Inequality Institute (SPII)
For additional information, contact:
Lilian Chenwi, associate professor, Wits School of Law: 072 172 6346 / lilian.chenwi@wits.ac.za
Jackie Dugard, executive director of SERI: 084 240 6187 / jackie@seri-sa.org
Rajesh Latchman, coordinator of the National Welfare Forum: 083 443 0227 / rajesh@nwf.org.za
Almost eighteen years after the South African government signed the ICESCR, Cabinet has approved that South Africa will ratify the ICESCR. This important decision to ratify, which means that the ICESCR will be legally binding, was included in a statement issued yesterday on Cabinet’s ordinary meeting held in Pretoria on 10 October 2012. The Cabinet statement describes how the ICESCR is a “key international treaty which seeks to encourage State Parties to address challenges of inequality, unemployment and poverty, which are critical to the strategic goals of governments.”
The ICESCR, together with the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration on Human Rights, constitutes the International Bill of Rights. The ICESCR has been ratifed by over 160 states since it was adopted in 1966, 48 of which are African states and 11 of which are member states of SADC. South Africa ratified the ICCPR in 1998, and its current ratification of the ICESCR will unambiguously signal its commitment to be legally bound by the full range of human rights recognised under international law. In its statement, Cabinet indicates that the recommendation to ratify the ICESCR will be tabled in Parliament for ratification in line with Section 231(2) of the South African Constitution.
Civil society organisations have been calling for many years for the South African government to ratify the ICESCR (and its Optional Protocol, which creates an individual complaints mechanism). The Community Law Centre (CLC), Socio-Economic Rights Institute of SA (SERI), Black Sash, People’s Health Movement South Africa, National Welfare Forum, Global Call to Action against Poverty South Africa (GCAP-SA) and the Studies in Poverty and Inequality Institute (SPII) see this as a great opportunity to ensure that South Africa’s jurisprudence on socio-economic rights develops in harmony with the normative standards set by the leading international treaty on these rights.
According to Jackie Dugard, executive director at the Socio-Economic Rights Institute of SA (SERI), “although this is a momentous and long-awaited decision, South Africa has for a while subscribed to the norms and standards contained in the ICESCR as it has ratified the African Charter on Human and People’s Rights of 1981, which echoes many of the socio-economic rights contained in the ICESCR. It has also included justiciable socio-economic rights in the Bill of Rights in the South African Constitution.
Prof Lilian Chenwi, associate professor at the Wits School of Law, states that “given the role played by the international community and international human rights law in the struggle against apartheid, ratification of the ICESCR will fulfil South Africa’s express desire ‘to take its rightful place as a sovereign state in the family of nations’, which is recognised in the Preamble to its Constitution.”
Rajesh Latchman, of the National Welfare Forum, states: “This move to ratify the ICESCR is an important step towards creating a harmonious roadmap for the realisation of socio-economic rights for all in SA, and it is about time too.”
While ratification of the ICESCR is significant, the ICESCR Ratification Campaign Driver Group encourages South Africa to also ratify the Optional Protocol to the ICESCR (OP-CESCR).
The Optional Protocol is an extra treaty that promotes a culture of accountability around the ICESCR, empowering vulnerable and marginalised groups to lodge individual complaints at the international level regarding violations of their socio-economic rights. The Optional Protocol is yet to come into force, as it requires 10 states to ratify it and, at present, only 8 states have done so.
It is hoped that the South African government will table the recommendation to ratify the ICESCR before Parliament and submit its accession instrument the United Nations without any further delay, and also ratify the Optional Protocol to concretise South Africa’s commitment to human rights and to bring this important international human rights instrument to life.
Issued by the ICESCR Ratification Campaign Driver Group which comprises:
Black Sash
Community Law Centre (CLC), University of the Western Cape
Global Call to Action against Poverty South Africa (GCAP-SA)
National Welfare Forum
People’s Health Movement South Africa
Socio-Economic Rights Institute of SA (SERI)
Studies in Poverty and Inequality Institute (SPII)
For additional information, contact:
Lilian Chenwi, associate professor, Wits School of Law: 072 172 6346 / lilian.chenwi@wits.ac.za
Jackie Dugard, executive director of SERI: 084 240 6187 / jackie@seri-sa.org
Rajesh Latchman, coordinator of the National Welfare Forum: 083 443 0227 / rajesh@nwf.org.za
Friday, October 5, 2012
Democratic Alliance v President of South Africa and Others
On Friday 5 October 2012, the Constitutional Court gave judgment in a case about whether the appointment of Mr Simelane as National Director of Public Prosecutions (NDPP) by the President of the Republic was constitutionally valid. In an application brought by the Democratic Alliance (DA), the North Gauteng High Court had held that the President’s decision was indeed valid, but the Supreme Court of Appeal set aside the decision as having been irrational. The Minister for Justice and Constitutional Development (Minister) sought to appeal against this decision.
Mr Simelane had given evidence before the Ginwala Commission of Enquiry concerning the conduct of the then NDPP, Mr Vusi Pikoli. The Report of the Ginwala Enquiry had severely criticised Mr Simelane’s approach to and evidence before that Enquiry and the Public Service Commission (PSC) had recommended that disciplinary proceedings be instituted against him. The Minister rejected the recommendations of the PSC and advised the President to ignore the findings of the Enquiry and Mr Simelane’s evidence before the Enquiry in the process of appointing Mr Simelane as NDPP. The President did not take these matters into account in making his decision to appoint Mr Simelane.
In a unanimous judgment (subject to a qualification by Zondo AJ in relation to one paragraph of the judgment), Yacoob ADCJ reached a number of legal conclusions:
a. The requirement that the National Director of Public Prosecutions must be a fit and proper person for appointment with due regard to his conscientiousness and integrity was not a matter to be determined according to the subjective opinion of the President. It was rather a jurisdictional pre-requisite to be determined objectively.
b. The requirement of rationality obliges courts to engage in an evaluation of the relationship between the means employed to reach a decision on the one hand, and the purpose for which the power to make the decision was conferred, on the other.
c. Each and every step in the process of reaching the decision must be rationally related to the outcome.
d. A failure to take into account relevant material that colours the entire process with irrationality will render the decision irrational.
e. The rationality test is the least invasive form of legal scrutiny and its applicability in respect of Executive decisions flows from an acceptance and recognition of the separation of powers, not the converse.
f. The purpose of the conferral of the power to appoint the National Director of Public Prosecutions on the President was to ensure that the appointee was sufficiently conscientious and had the integrity required to be entrusted with the responsibilities of the office.
g. Dishonesty is inconsistent with the conscientiousness and integrity required for the proper execution of the responsibilities of a National Director of Public Prosecutions.
The Constitutional Court evaluated Mr Simelane’s evidence at the Ginwala Enquiry and concluded that the evidence was contradictory and, on its face, indicative of Mr Simelane’s dishonesty and raised serious questions about Mr Simelane’s conscientiousness, integrity and credibility. The failure to take this into account would, absent acceptable reasons for not doing so, not be rationally related to the achievement of the purpose of appointing a person of conscientiousness and integrity as NDPP. The Constitutional Court held further that the reasons the Minister had provided for withholding this evidence from the President was insufficient,and that the failure by the President to take into account this evidence without more was irrational in the sense of not being rationally related to and inconsistent with the purpose of appointing, as NDPP a fit and proper person with due regard to his conscientiousness and integrity.
The President’s decision was set aside and the Minister was ordered to pay the costs of the DA, including costs of two counsel.
In a short concurring judgment, Zondo AJ agreed with the conclusion, most of the reasoning and order in the main judgment. However, he took the view that, on the facts, it was not necessary to express a definitive view on whether or not a statutory body such as the PSC was required to have given Mr Simelane an opportunity to be heard before it reached its conclusions and made its recommendations to the Minister. This was because the Minister, who was the authority in whom the power to institute a disciplinary hearing into Mr Simelane’s conduct vested, did give Mr Simelane the opportunity to be heard.
Source: Polity
Mr Simelane had given evidence before the Ginwala Commission of Enquiry concerning the conduct of the then NDPP, Mr Vusi Pikoli. The Report of the Ginwala Enquiry had severely criticised Mr Simelane’s approach to and evidence before that Enquiry and the Public Service Commission (PSC) had recommended that disciplinary proceedings be instituted against him. The Minister rejected the recommendations of the PSC and advised the President to ignore the findings of the Enquiry and Mr Simelane’s evidence before the Enquiry in the process of appointing Mr Simelane as NDPP. The President did not take these matters into account in making his decision to appoint Mr Simelane.
In a unanimous judgment (subject to a qualification by Zondo AJ in relation to one paragraph of the judgment), Yacoob ADCJ reached a number of legal conclusions:
a. The requirement that the National Director of Public Prosecutions must be a fit and proper person for appointment with due regard to his conscientiousness and integrity was not a matter to be determined according to the subjective opinion of the President. It was rather a jurisdictional pre-requisite to be determined objectively.
b. The requirement of rationality obliges courts to engage in an evaluation of the relationship between the means employed to reach a decision on the one hand, and the purpose for which the power to make the decision was conferred, on the other.
c. Each and every step in the process of reaching the decision must be rationally related to the outcome.
d. A failure to take into account relevant material that colours the entire process with irrationality will render the decision irrational.
e. The rationality test is the least invasive form of legal scrutiny and its applicability in respect of Executive decisions flows from an acceptance and recognition of the separation of powers, not the converse.
f. The purpose of the conferral of the power to appoint the National Director of Public Prosecutions on the President was to ensure that the appointee was sufficiently conscientious and had the integrity required to be entrusted with the responsibilities of the office.
g. Dishonesty is inconsistent with the conscientiousness and integrity required for the proper execution of the responsibilities of a National Director of Public Prosecutions.
The Constitutional Court evaluated Mr Simelane’s evidence at the Ginwala Enquiry and concluded that the evidence was contradictory and, on its face, indicative of Mr Simelane’s dishonesty and raised serious questions about Mr Simelane’s conscientiousness, integrity and credibility. The failure to take this into account would, absent acceptable reasons for not doing so, not be rationally related to the achievement of the purpose of appointing a person of conscientiousness and integrity as NDPP. The Constitutional Court held further that the reasons the Minister had provided for withholding this evidence from the President was insufficient,and that the failure by the President to take into account this evidence without more was irrational in the sense of not being rationally related to and inconsistent with the purpose of appointing, as NDPP a fit and proper person with due regard to his conscientiousness and integrity.
The President’s decision was set aside and the Minister was ordered to pay the costs of the DA, including costs of two counsel.
In a short concurring judgment, Zondo AJ agreed with the conclusion, most of the reasoning and order in the main judgment. However, he took the view that, on the facts, it was not necessary to express a definitive view on whether or not a statutory body such as the PSC was required to have given Mr Simelane an opportunity to be heard before it reached its conclusions and made its recommendations to the Minister. This was because the Minister, who was the authority in whom the power to institute a disciplinary hearing into Mr Simelane’s conduct vested, did give Mr Simelane the opportunity to be heard.
Source: Polity
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