President Jacob Zuma has appointed Mxolisi Nxasana as the new national director of public prosecutions, says the presidency.
Nxasana, from the KwaZulu-Natal division of the high court, would start his new role on October 1, spokesperson Mac Maharaj said in a statement.
"Nxasana currently practises as an attorney with a wealth of experience in criminal litigation, coupled with his having occupied senior positions in the legal profession – including the chairpersonship of the KwaZulu-Natal Law Society," said Maharaj.
The NPA has been without a permanent chief since November 2011, after Menzi Simelane's appointment was declared invalid.
Simelane's appointment as NPA boss was deemed "inconsistent with the Constitution and invalid" as Zuma did not apply his mind in the decision.
Simelane, who Zuma placed on paid leave after the decision, was appointed NPA boss in 2009 after the 2008 Ginwala inquiry severely criticised him.
The inquiry, which investigated the fitness of former NPA head Vusi Pikoli's ability to hold office, labelled Simelane's evidence before the inquiry as "contradictory and without basis in fact or in law" and blamed him for suppressing a disclosure of information. – Sapa
Source: Mail & Guardian
Showing posts with label Vusi Pikoli. Show all posts
Showing posts with label Vusi Pikoli. Show all posts
Friday, August 30, 2013
Monday, January 14, 2013
Mthethwa fails to stop Zille's police inquiry
A high court has dismissed an application by the police minister for an interdict against a commission of inquiry into Khayelitsha's policing.
On Monday the Western Cape High Court announced its dismissal of Police Minister Nathi Mthethwa's urgent interdict against the commission set up by Premier Helen Zille last year. The commission – headed by advocate Vusi Pikoli and retired Constitutional Court Judge Catherine O’Reagan – was tasked with investigating allegations of police inefficiency and the breakdown of the relationship of the police after public lobbying by organisations such as Equal Education, the Social Justice Coalition and the Treatment Action Campaign.
In response to arguments by advocates representing Zille, the Social Justice Coalition and the commission itself last year, Mthethwa's legal team argued Zille's decision to appoint the commission would have an impact on the independence of the South African Police Service. Advocate Peter Hawthorne, acting for the coalition, on Monday told the court Mthethwa's legal team failed to prove the commission would cause irreparable harm to the SAPS. The commission was meant to hold public hearings from November 12 to December 14, which was since suspended pending the outcome of Mthethwa's application.
Last year the M&G reported that there had been more than 18 vigilante killings in Khayelitsha in 2012 – which activists related to the community’s lack of trust in the police’s ability to maintain order – as well as a spate of gang violence in the area.
"The rationale behind the setting up of such a commission, which, at a strategic level, only focuses on the South African Police Service and not the Western Cape metro police, is suspicious if not questionable," Mthethwa said in November after the commission was set up.
"Despite the engagements we held with the premier over the past weeks, it is evident that she is determined to continue with the commission by hook or crook, which leaves us with no option but to challenge the matter through the legal framework," said Mthethwa when he challenged the validity of the commission.
Following Mthethwa’s urgent interdict in November, many residents of Khayelitsha and activists – including Social Justice Coalition founder Zackie Achmat and its workers – gathered outside the Western Cape High Court last year to protest against the police minister's attempt to stop the commission of inquiry.
Outside the court on Monday residents took part in the “people’s commission of inquiry into crime in Khayelitsha” where they shared stories about their experiences with the police in the township, and Achmat used a loudspeaker to call witnesses to the "stand".
Source: Mail & Guardian
On Monday the Western Cape High Court announced its dismissal of Police Minister Nathi Mthethwa's urgent interdict against the commission set up by Premier Helen Zille last year. The commission – headed by advocate Vusi Pikoli and retired Constitutional Court Judge Catherine O’Reagan – was tasked with investigating allegations of police inefficiency and the breakdown of the relationship of the police after public lobbying by organisations such as Equal Education, the Social Justice Coalition and the Treatment Action Campaign.
In response to arguments by advocates representing Zille, the Social Justice Coalition and the commission itself last year, Mthethwa's legal team argued Zille's decision to appoint the commission would have an impact on the independence of the South African Police Service. Advocate Peter Hawthorne, acting for the coalition, on Monday told the court Mthethwa's legal team failed to prove the commission would cause irreparable harm to the SAPS. The commission was meant to hold public hearings from November 12 to December 14, which was since suspended pending the outcome of Mthethwa's application.
Last year the M&G reported that there had been more than 18 vigilante killings in Khayelitsha in 2012 – which activists related to the community’s lack of trust in the police’s ability to maintain order – as well as a spate of gang violence in the area.
"The rationale behind the setting up of such a commission, which, at a strategic level, only focuses on the South African Police Service and not the Western Cape metro police, is suspicious if not questionable," Mthethwa said in November after the commission was set up.
"Despite the engagements we held with the premier over the past weeks, it is evident that she is determined to continue with the commission by hook or crook, which leaves us with no option but to challenge the matter through the legal framework," said Mthethwa when he challenged the validity of the commission.
Following Mthethwa’s urgent interdict in November, many residents of Khayelitsha and activists – including Social Justice Coalition founder Zackie Achmat and its workers – gathered outside the Western Cape High Court last year to protest against the police minister's attempt to stop the commission of inquiry.
Outside the court on Monday residents took part in the “people’s commission of inquiry into crime in Khayelitsha” where they shared stories about their experiences with the police in the township, and Achmat used a loudspeaker to call witnesses to the "stand".
Source: Mail & Guardian
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
Monday, July 9, 2012
When will the political interference stop?
After President John F Kennedy was assassinated, Malcolm X famously said that the assassination was a case of the “chickens coming home to roost,” adding that “chickens coming home to roost never did make me sad; they’ve always made me glad.” In other words, he was implying that since the white man had used violence so often and so easily in America (especially against black Americans), it was just cosmic balance that the President would become a victim of violence.
Well, the chickens are coming home to roost big time with regard to the on-going political manipulation and abuse of the National Prosecuting Authority (NPA) by various political factions within the ANC. When a perception takes hold that the NPA will prosecute some and avoid prosecuting others solely on the basis of their political connections or on the basis of whether they belong to the faction associated with the incumbent President or not, the credibility of that institution is fatally compromised.
When newspapers then report allegations of flagrant political interference in decisions to prosecute politically connected politicians (as the Mail & Guardian again did on Friday), few well-informed people will read such reports with scepticism. After all, we know that the NPA has often made decisions in the past based on political rather on legal considerations (including in the case relating to the prosecution of President Zuma and then later, the dropping of charges against President Zuma).
It was exactly to prevent this sorry state of affairs, that the drafters of our Constitution included a provision in section 179(4) of the Constitution which states that: “National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice”. Of course, politicians, including then President Thabo Mbeki and now President Jacob Zuma, do not like to focus on this section of the Constitution, instead pointing to section 179(6) of the Constitution to justify direct interference in the decisions of the NPA. This section states that: “The cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority”.
What the politicians choose to ignore is the following.
The Constitutional Court, in the First Certification Judgment, confirmed that despite this strange provision about the Minister having to exercise final responsibility for the NPA, the Constitution created an independent body in the following terms:
[Section] 179(4) provides that the national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice. There is accordingly a constitutional guarantee of independence, and any legislation or executive action inconsistent therewith would be subject to constitutional control by the courts.
The politicians also conveniently ignore the judgment of the Supreme Court of Appeal (SCA), in which it dealt with the need for the NPA to be independent while also taking cognisance of the need for the Minister to take final responsibility for the NPA in the following terms:
[T]he Constitution on the one hand vests the prosecutorial responsibility in the NPA while, on the other, it provides that the Minister must exercise final responsibility over it. These provisions may appear to conflict but, as the Namibian Supreme Court held in relation to comparable provisions in its Constitution, they are not incompatible. It held (I am using terms that conform with our Constitution) that although the Minister may not instruct the NPA to prosecute or to decline to prosecute or to terminate a pending prosecution, the Minister is entitled to be kept informed in respect of all prosecutions initiated or to be initiated which might arouse public interest or involve important aspects of legal or prosecutorial authority.
That is why the NPA Act requires members of the prosecuting authority to serve “impartially” and exercise, carry out or perform their powers, duties and functions “in good faith and without fear, favour or prejudice” and subject only to the Constitution and the law. The Act further provides that no one may interfere “improperly” with the NPA in the performance of its duties and functions (in section 32(1)(b) of the Act).
The Act confirms that the manner in which the Minister exercises final responsibility over the NPA is by obliging the NDPP, at the request of the Minister, to furnish the latter with information or a report with regard to any case and to provide the Minister with reasons for any decision taken. The Minister can ask for information, but cannot give any instructions or make any requests regarding the prosecution or non-prosecution of anybody (unless, of course, the Minister is intent on committing a criminal offence by “improperly” trying to influence the NPA).
Of course, problems around political interference in the work of the NPA and the corrupt influence of political loyalties on NPA decisions arise not only when the Minister tries to issue illegal and criminal instructions to the NPA (as former Minister Bridget Mbandla did when she sent a letter – drafted by Menzi Simelane – to former head of the NPA, Vusi Pikoli to stop the arrest of a crook who also happened to be the Police Commissioner ), but also when members in leadership positions inside the NPA stop acting in good faith and instead make decisions based purely on their own political loyalties and self-interest.
When they are willing to do the bidding of their political masters without being instructed to do so, or when they improperly follow the hints or instructions of the Minister or other member of the relevant political faction inside the ANC, they destroy the credibility of the NPA and directly undermine the Rule of Law by creating a situation in which some criminals are above the law because of the political protection they enjoy.
The allegations in the Mail & Guardian regarding the interference in the “Three Amigo’s” case as well as the allegations tha5t the disciplinary charges were brought against prosecutor Glynnis Breytenbach for what appears to be her rather enthusiastic pursuit of the company owned by President Zuma’s financial benefactors, the Gupta’s, or because of her pursuit of that bastion of probity and honesty, Richard Mdluli, illustrate the dangers of the political “capturing of the NPA rather well.
Even if all these allegations are false, given the past abuse of the NPA many people will think them credible or even true. They will think it is true because the chickens have truly come home to roost for the politically much abused and subverted NPA. Who on earth is ever going to believe the protestations of the NPA that there is no political interference when there is such strong proof of on-going political interference at the NPA? I know, I won’t.
It is ironic that President Zuma, who complained bitterly about the abuse of the NPA by the Thabo Mbeki faction when he was facing corruption charges has overseen the further erosion of trust in this institution. I guess it was bad when the other guys were doing it, but now that he is in charge the principles are slightly different to suite the politics. But I guess he will only realise how the chickens have ccome home to roost if he loses his bid for another term as ANC and South African President and again faces the possibility of having to explain to a judge why he took a bribe from Schabir Shaik.
Source: Constitutionally Speaking
Well, the chickens are coming home to roost big time with regard to the on-going political manipulation and abuse of the National Prosecuting Authority (NPA) by various political factions within the ANC. When a perception takes hold that the NPA will prosecute some and avoid prosecuting others solely on the basis of their political connections or on the basis of whether they belong to the faction associated with the incumbent President or not, the credibility of that institution is fatally compromised.
When newspapers then report allegations of flagrant political interference in decisions to prosecute politically connected politicians (as the Mail & Guardian again did on Friday), few well-informed people will read such reports with scepticism. After all, we know that the NPA has often made decisions in the past based on political rather on legal considerations (including in the case relating to the prosecution of President Zuma and then later, the dropping of charges against President Zuma).
It was exactly to prevent this sorry state of affairs, that the drafters of our Constitution included a provision in section 179(4) of the Constitution which states that: “National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice”. Of course, politicians, including then President Thabo Mbeki and now President Jacob Zuma, do not like to focus on this section of the Constitution, instead pointing to section 179(6) of the Constitution to justify direct interference in the decisions of the NPA. This section states that: “The cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority”.
What the politicians choose to ignore is the following.
The Constitutional Court, in the First Certification Judgment, confirmed that despite this strange provision about the Minister having to exercise final responsibility for the NPA, the Constitution created an independent body in the following terms:
[Section] 179(4) provides that the national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice. There is accordingly a constitutional guarantee of independence, and any legislation or executive action inconsistent therewith would be subject to constitutional control by the courts.
The politicians also conveniently ignore the judgment of the Supreme Court of Appeal (SCA), in which it dealt with the need for the NPA to be independent while also taking cognisance of the need for the Minister to take final responsibility for the NPA in the following terms:
[T]he Constitution on the one hand vests the prosecutorial responsibility in the NPA while, on the other, it provides that the Minister must exercise final responsibility over it. These provisions may appear to conflict but, as the Namibian Supreme Court held in relation to comparable provisions in its Constitution, they are not incompatible. It held (I am using terms that conform with our Constitution) that although the Minister may not instruct the NPA to prosecute or to decline to prosecute or to terminate a pending prosecution, the Minister is entitled to be kept informed in respect of all prosecutions initiated or to be initiated which might arouse public interest or involve important aspects of legal or prosecutorial authority.
That is why the NPA Act requires members of the prosecuting authority to serve “impartially” and exercise, carry out or perform their powers, duties and functions “in good faith and without fear, favour or prejudice” and subject only to the Constitution and the law. The Act further provides that no one may interfere “improperly” with the NPA in the performance of its duties and functions (in section 32(1)(b) of the Act).
The Act confirms that the manner in which the Minister exercises final responsibility over the NPA is by obliging the NDPP, at the request of the Minister, to furnish the latter with information or a report with regard to any case and to provide the Minister with reasons for any decision taken. The Minister can ask for information, but cannot give any instructions or make any requests regarding the prosecution or non-prosecution of anybody (unless, of course, the Minister is intent on committing a criminal offence by “improperly” trying to influence the NPA).
Of course, problems around political interference in the work of the NPA and the corrupt influence of political loyalties on NPA decisions arise not only when the Minister tries to issue illegal and criminal instructions to the NPA (as former Minister Bridget Mbandla did when she sent a letter – drafted by Menzi Simelane – to former head of the NPA, Vusi Pikoli to stop the arrest of a crook who also happened to be the Police Commissioner ), but also when members in leadership positions inside the NPA stop acting in good faith and instead make decisions based purely on their own political loyalties and self-interest.
When they are willing to do the bidding of their political masters without being instructed to do so, or when they improperly follow the hints or instructions of the Minister or other member of the relevant political faction inside the ANC, they destroy the credibility of the NPA and directly undermine the Rule of Law by creating a situation in which some criminals are above the law because of the political protection they enjoy.
The allegations in the Mail & Guardian regarding the interference in the “Three Amigo’s” case as well as the allegations tha5t the disciplinary charges were brought against prosecutor Glynnis Breytenbach for what appears to be her rather enthusiastic pursuit of the company owned by President Zuma’s financial benefactors, the Gupta’s, or because of her pursuit of that bastion of probity and honesty, Richard Mdluli, illustrate the dangers of the political “capturing of the NPA rather well.
Even if all these allegations are false, given the past abuse of the NPA many people will think them credible or even true. They will think it is true because the chickens have truly come home to roost for the politically much abused and subverted NPA. Who on earth is ever going to believe the protestations of the NPA that there is no political interference when there is such strong proof of on-going political interference at the NPA? I know, I won’t.
It is ironic that President Zuma, who complained bitterly about the abuse of the NPA by the Thabo Mbeki faction when he was facing corruption charges has overseen the further erosion of trust in this institution. I guess it was bad when the other guys were doing it, but now that he is in charge the principles are slightly different to suite the politics. But I guess he will only realise how the chickens have ccome home to roost if he loses his bid for another term as ANC and South African President and again faces the possibility of having to explain to a judge why he took a bribe from Schabir Shaik.
Source: Constitutionally Speaking
Friday, March 30, 2012
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
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
Thursday, December 1, 2011
SCA: Simelane's appointment as NPA boss 'invalid'
The Supreme Court of Appeal has ruled that Menzi Simelane's appointment by President Jacob Zuma as the director of public prosecutions at the National Prosecuting Authority (NPA), was invalid. The case was brought to the appeals court by the Democratic Alliance, after its bid to have Zuma's decision to appoint Simelane as the NPA boss set aside failed in the North Gauteng High Court in Pretoria last year.
On Thursday morning, Judge Mahomed Navsa ruled that Simelane's appointment was "inconsistent with the Constitution and invalid". The judgment set aside the findings of the North Gauteng High Court, and ordered the president, Justice Minister Jeff Radebe and Simelane to pay the DA's costs. In its application, the DA argued that Zuma "acted outside of his powers by appointing a person who is not fit and proper to hold the office of national director of public prosecutions".
Justice ministry spokesperson Tlali Tlali said the ruling would be challenged in the Constitutional Court. "Naturally, we are disappointed but respect the court's judgment in this matter," said Tlali on Thursday. "We will study the judgment in order to understand its implications as it unfolds further. The court's order must be referred to the Constitutional Court for confirmation as provided for in terms of section 172(2) of the Constitution. A final determination has yet to be made as to what our legal attitude to this matter at the Constitutional Court will be."
The DA's Dene Smuts told the Mail and Guardian on Thursday: "We are very delighted by the judgment. We had major problems with his appointment. We did not think he was fit and proper for the position. We felt it was cadre deployment and are now looking forward to the president putting someone in the position who is fit and proper for the job." The foundation of the DA's case against Simelane was the "misleading and untruthful evidence" he gave during the 2008 Ginwala Inquiry, when he was the director general in the department of justice and constitutional development.
The inquiry looked at the fitness for office of Simelane's predecessor, Vusi Pikoli. Ginwala severely criticised Simelane in her final report, calling him arrogant and condescending towards Pikoli. Ginwala labelled his evidence before the inquiry "contradictory and without basis in fact or in law" and blamed him for suppressing the disclosure of information. This specifically referred to a legal opinion advising Simelane that he did not have authority over the NPA, as he had claimed.
Simelane's conduct was "irregular" and Ginwala even suggested he might have contravened the NPA Act by drafting a letter to Pikoli that instructed him to abort the imminent arrest of former police boss Jackie Selebi.
Although a formal inquiry was set up to inquire into Simelane's conduct before Ginwala in February 2009, Justice Minister Jeff Radebe declined to take disciplinary proceedings against him. Instead he was appointed as deputy national director of prosecutions. The DA argued that Zuma made Simelane's appointment based solely on his CV, without taking into account his questionable behaviour during the enquiry.
Navsa found that Zuma was remiss in not taking the time to consider all the facts about Simelane, saying in his judgment: "I accept that the president must have a multitude of daily duties and is a very busy man. However when he is dealing with an office as important as that of the national director of public prosecutions, which is integral to the rule of law and to our success as a democracy, then time should be taken to get it right." He went on to say: "On the available evidence the president could in any event not have reached a conclusion favourable to Mr Simelane, as there were too many unresolved questions concerning his integrity and experience."
The judgment was careful to prove precedent for judicial scrutiny of the president's appointment of a public prosecutor. In recent months, Zuma and other members of the executive have made several statements taking issue with an "unelected" judiciary passing judgment on executive decisions. During a farewell to former chief justice Sandile Ngcobo earlier this year, Zuma said: "We must not get a sense that there are those who wish to co-govern the country through the courts, when they have not won the popular vote during elections." He added that the powers conferred on the courts could not be regarded as superior to the powers resulting from a mandate given by the people in a popular vote.
Source: Mail & Guardian
On Thursday morning, Judge Mahomed Navsa ruled that Simelane's appointment was "inconsistent with the Constitution and invalid". The judgment set aside the findings of the North Gauteng High Court, and ordered the president, Justice Minister Jeff Radebe and Simelane to pay the DA's costs. In its application, the DA argued that Zuma "acted outside of his powers by appointing a person who is not fit and proper to hold the office of national director of public prosecutions".
Justice ministry spokesperson Tlali Tlali said the ruling would be challenged in the Constitutional Court. "Naturally, we are disappointed but respect the court's judgment in this matter," said Tlali on Thursday. "We will study the judgment in order to understand its implications as it unfolds further. The court's order must be referred to the Constitutional Court for confirmation as provided for in terms of section 172(2) of the Constitution. A final determination has yet to be made as to what our legal attitude to this matter at the Constitutional Court will be."
The DA's Dene Smuts told the Mail and Guardian on Thursday: "We are very delighted by the judgment. We had major problems with his appointment. We did not think he was fit and proper for the position. We felt it was cadre deployment and are now looking forward to the president putting someone in the position who is fit and proper for the job." The foundation of the DA's case against Simelane was the "misleading and untruthful evidence" he gave during the 2008 Ginwala Inquiry, when he was the director general in the department of justice and constitutional development.
The inquiry looked at the fitness for office of Simelane's predecessor, Vusi Pikoli. Ginwala severely criticised Simelane in her final report, calling him arrogant and condescending towards Pikoli. Ginwala labelled his evidence before the inquiry "contradictory and without basis in fact or in law" and blamed him for suppressing the disclosure of information. This specifically referred to a legal opinion advising Simelane that he did not have authority over the NPA, as he had claimed.
Simelane's conduct was "irregular" and Ginwala even suggested he might have contravened the NPA Act by drafting a letter to Pikoli that instructed him to abort the imminent arrest of former police boss Jackie Selebi.
Although a formal inquiry was set up to inquire into Simelane's conduct before Ginwala in February 2009, Justice Minister Jeff Radebe declined to take disciplinary proceedings against him. Instead he was appointed as deputy national director of prosecutions. The DA argued that Zuma made Simelane's appointment based solely on his CV, without taking into account his questionable behaviour during the enquiry.
Navsa found that Zuma was remiss in not taking the time to consider all the facts about Simelane, saying in his judgment: "I accept that the president must have a multitude of daily duties and is a very busy man. However when he is dealing with an office as important as that of the national director of public prosecutions, which is integral to the rule of law and to our success as a democracy, then time should be taken to get it right." He went on to say: "On the available evidence the president could in any event not have reached a conclusion favourable to Mr Simelane, as there were too many unresolved questions concerning his integrity and experience."
The judgment was careful to prove precedent for judicial scrutiny of the president's appointment of a public prosecutor. In recent months, Zuma and other members of the executive have made several statements taking issue with an "unelected" judiciary passing judgment on executive decisions. During a farewell to former chief justice Sandile Ngcobo earlier this year, Zuma said: "We must not get a sense that there are those who wish to co-govern the country through the courts, when they have not won the popular vote during elections." He added that the powers conferred on the courts could not be regarded as superior to the powers resulting from a mandate given by the people in a popular vote.
Source: Mail & Guardian
Thursday, August 5, 2010
More questions for Mbeki on Selebi
These are observations by Pierre De Vos, on his blog "Contitutionally Speaking"
Selebi has now been convicted and sentenced for corruption. However, it is unclear whether the full truth about the events surrounding the Selebi case - including the events that led to the suspension of former National Director of Public Prosecutions, Vusi Pikoli after he issued an arrest warrant for Selebi – has been told.
On 9 November 2006, then President Mbeki wrote a letter to Pieter Groenewald, an MP in the National Assembly. Groenewald had written a letter on 7 November 2006, requesting President Mbeki to appoint a Judicial Commission of Inquiry to investigate various allegations of corruption leveled against Selebi. In the letter, Mbeki declined to appoint such a commission and wrote:
The conviction and sentencing of Jackie Selebi demonstrates that the confidence expresssed in Selebi in the second paragraph of the letter quoted above turned out to be misplaced. It has now also emerged that the claim made in the first paragraph of Mbeki’s letter is difficult (if not impossible) to square with the known facts. In paragraph 257 and 258 of the Ginwala Inquiry Report, Ginwala made the following findings:
President Mbeki was therefore briefed about the investigation against Selebi on at least two occasions before he wrote the letter to Groenewald in which he claimed that no one “in state structures” had informed him about any investigation (or pending investigation) against Selebi. In fact, Mbeki met Pikoli for a third time to discuss the investigation against Selebi on the very same day that he wrote the letter to Groenewald. As this was a letter and not a national televised speech, one will never know if Mbeki’s bottom lip quivered while he was writing this letter.
Source: Constitutionally Speaking: Pierre De Vos
Selebi has now been convicted and sentenced for corruption. However, it is unclear whether the full truth about the events surrounding the Selebi case - including the events that led to the suspension of former National Director of Public Prosecutions, Vusi Pikoli after he issued an arrest warrant for Selebi – has been told.
On 9 November 2006, then President Mbeki wrote a letter to Pieter Groenewald, an MP in the National Assembly. Groenewald had written a letter on 7 November 2006, requesting President Mbeki to appoint a Judicial Commission of Inquiry to investigate various allegations of corruption leveled against Selebi. In the letter, Mbeki declined to appoint such a commission and wrote:
Up to now nobody within the state structures has informed me that there are any investigations affecting National Commissioner Selebi that are being conducted by anybody, including the DSO, (the Scorpions). I am certain that if there was such an investigation, or such an investigation was contemplated, I would have been informed accordingly. In this regard. I must emphasise that if any of our law enforcement or intelligence agencies felt that they had information that justified such an investigation, I would encourage them to do their work without let or hindrance, in keeping with their legal mandate….
I have the greatest confidence in National Commissioner Selebi. I am certain that whatever the rumour mill is saying about him, he will continue to do his critically important work with the same diligence, dedication and selflessness he has shown ever since we appointed him as National Commissioner of the SAPS.
The conviction and sentencing of Jackie Selebi demonstrates that the confidence expresssed in Selebi in the second paragraph of the letter quoted above turned out to be misplaced. It has now also emerged that the claim made in the first paragraph of Mbeki’s letter is difficult (if not impossible) to square with the known facts. In paragraph 257 and 258 of the Ginwala Inquiry Report, Ginwala made the following findings:
It is not disputed that Adv Pikoli met with the Minister and briefed her on the investigation into the National Commissioner of Police on 13 separate occasions: In March 2006, in August 2006, on 9 November 2006, on 16 November 2006, on 11 March 2007, on 13 March 2007, on 17 March 2007, on 28 March 2007, on 8 May 2007, on 25 June 2007, on 11 September 2007, on 18 September 2007 and on 23 September 2007. Following these meetings he furnished the Minister with two written reports on 19 March 2007 and 19 September 2007.
It is also common cause that Adv Pikoli met and briefed the President on the investigation against the National Commissioner of Police on 10 occasions: In March 2006, in August 2006, on 9 or 10 November 2006, on 14 November 2006, on 20 November 2006, on 11 March 2007, on 9 May 2007, on 20 May 2007, on 15 September 2007 and on 16 September 2007. The evidence is that he gave the President written reports on 7 May 2007 and 16 September 2007.
President Mbeki was therefore briefed about the investigation against Selebi on at least two occasions before he wrote the letter to Groenewald in which he claimed that no one “in state structures” had informed him about any investigation (or pending investigation) against Selebi. In fact, Mbeki met Pikoli for a third time to discuss the investigation against Selebi on the very same day that he wrote the letter to Groenewald. As this was a letter and not a national televised speech, one will never know if Mbeki’s bottom lip quivered while he was writing this letter.
Source: Constitutionally Speaking: Pierre De Vos
Wednesday, August 4, 2010
Pikoli to join forensic unit
Former national director of public prosecutions Vusi Pikoli has been appointed to head the Gobodo Incorporated forensics unit, the company said on Wednesday. Gobodo's CEO Nonkululeko Gobodo said Pikoli's appointment had come as the firm was expanding its forensics unit. "Good governance and transparency have become increasingly crucial in this era that has witnessed an increase in corporate fraud and corruption," she said.
Pikoli, who has been working in the legal field for more than 20 years, was suspended by former president Thabo Mbeki for not backing down on the prosecution of former national police commissioner Jackie Selebi. Selebi was on Tuesday sentenced to 15 years' imprisonment for corruption. Gobodo was established in 1996 by a group of black chartered accountants.
Pikoli took the helm of the unit at the beginning of this month.
Source: Iol
Pikoli, who has been working in the legal field for more than 20 years, was suspended by former president Thabo Mbeki for not backing down on the prosecution of former national police commissioner Jackie Selebi. Selebi was on Tuesday sentenced to 15 years' imprisonment for corruption. Gobodo was established in 1996 by a group of black chartered accountants.
Pikoli took the helm of the unit at the beginning of this month.
Source: Iol
Wednesday, April 7, 2010
Time to move away from the Malema monologue to dialogue on our future
A hip-hop star, allegedly high on cocaine ploughs into a group of schoolchildren in Soweto, killing 4 of them. The National Director of Public Prosecutions (NDPP), Menzi Simelane, admits to intervening in order to ensure that the singer gets bail. This is so despite the fact that the senior prosecutor assigned to the case, opposes bail. A senior political figure visits the singer in prison and provides him with a take-out meal.
This story of hip-hop singer, Jub-Jub neatly reflects so much of what is wrong in our society; life is cheap and if you are poor it is even cheaper and there are no guarantees that the law will provide the requisite protection from excess. Those who are politically connected, it seems, stand a greater chance of escaping the consequences of their actions. No presidential address made the news when these children were killed. One of the most dangerous appointments made by President Zuma must surely be that of Menzi Simelane? During the Ginwala commission of enquiry into the fitness of Vusi Pikoli (then NDPP) to hold office, Simelane, then Director-General of Justice, was found to have interfered when he deemed it proper to pen a letter to Vusi Pikoli in order to stop the investigation into Jackie Selebi. Ginwala found this conduct to be ‘reckless' and Simelane's evidence ‘contradictory'. That Simelane is now in probably one of the most powerful positions in the country and making decisions on prosecutions should concern all who are committed to the rule of law. His ‘redeployment' of senior members of the prosecuting service seems less linked to bolstering the lower courts than to weakening the resolve of senior prosecutors. His admission to intervening in the Jub Jub case and opposition to a provisional preservation order against Fana Hlongwane, who was alleged to have received bribes associated with the arms deal both indicate that Simelane is continuing his ‘reckless' actions to suit the political winds. Thus far Simelane has done little to deserve our trust. In fact, in the Jub Jub case he has acted against the interests of children and the community through his intervention.
This weekend when Eugene Terreblanche is murdered on his farm in Ventersdorp, the President, in an address on national television appeals for calm and says that ‘the institutions of state' must be allowed to do their work. They should, but then equally, those in power should not use political influence to undermine the institutions of state, as we have seen repeatedly in recent times. For, during times of crisis and when political rhetoric becomes inflamed, all we can do is rely on the rules of the game. What this means, simply, is that when a court hands down a decision regarding hate speech, the state should be firm in its resolve to ensure that inflammatory language does not lace our political discourse. It also means that the President, as head of state must unequivocally show leadership on such matters and on questions of nation-building. It means that the President must, on behalf of all of us, say unequivocally, that the nightmarish visions of an unelected upstart like Julius Malema, dressed in ZANU-PF garb does not represent who and what we are.
Whatever the motive behind the murder, the Terreblanche incident shows that life is cheap; both white life and black life. It is a sad indictment of our society and the depravity which is reflected in these acts. Black people in Ventersdorp now live in fear of reprisals from right-wingers. White farmers continuously live in fear of being murdered and attacked on their farm homes. Whatever the politics of Terreblanche, his murder was a brutal act and must be condemned. It should also provide pause for thought at the hundreds of farmers murdered annually and the many killed in townships and suburbs across our country in random criminal acts. If anything, the state has failed dismally to keep us all safe. We don't need statistics to prove the lawlessness. It is in the suburbs behind electric fences, in the townships amongst mothers afraid to allow children to play outside for fear of being raped or attacked.
We live in uncertain times. Our political leadership has never been as unconvincing since the dawn of democracy. Never before has cross-racial solidarity to advance the gains of 1994 been so crucial. Never before have we needed to build social movements, a powerful media and community organizations to advance the rights of the Constitution, more than now. It is time. It is time for ordinary citizens, business, the academy and communities to take a stand for a decent society with principled leadership. It is time for us to move away from the ‘Malema monologue' and into a dialogue between the millions of peace-loving South Africans who want to see the beloved country prosper.
Source: Polity: INSTITUTE FOR DEMOCRACY IN SOUTH AFRICA: Judith February
This story of hip-hop singer, Jub-Jub neatly reflects so much of what is wrong in our society; life is cheap and if you are poor it is even cheaper and there are no guarantees that the law will provide the requisite protection from excess. Those who are politically connected, it seems, stand a greater chance of escaping the consequences of their actions. No presidential address made the news when these children were killed. One of the most dangerous appointments made by President Zuma must surely be that of Menzi Simelane? During the Ginwala commission of enquiry into the fitness of Vusi Pikoli (then NDPP) to hold office, Simelane, then Director-General of Justice, was found to have interfered when he deemed it proper to pen a letter to Vusi Pikoli in order to stop the investigation into Jackie Selebi. Ginwala found this conduct to be ‘reckless' and Simelane's evidence ‘contradictory'. That Simelane is now in probably one of the most powerful positions in the country and making decisions on prosecutions should concern all who are committed to the rule of law. His ‘redeployment' of senior members of the prosecuting service seems less linked to bolstering the lower courts than to weakening the resolve of senior prosecutors. His admission to intervening in the Jub Jub case and opposition to a provisional preservation order against Fana Hlongwane, who was alleged to have received bribes associated with the arms deal both indicate that Simelane is continuing his ‘reckless' actions to suit the political winds. Thus far Simelane has done little to deserve our trust. In fact, in the Jub Jub case he has acted against the interests of children and the community through his intervention.
This weekend when Eugene Terreblanche is murdered on his farm in Ventersdorp, the President, in an address on national television appeals for calm and says that ‘the institutions of state' must be allowed to do their work. They should, but then equally, those in power should not use political influence to undermine the institutions of state, as we have seen repeatedly in recent times. For, during times of crisis and when political rhetoric becomes inflamed, all we can do is rely on the rules of the game. What this means, simply, is that when a court hands down a decision regarding hate speech, the state should be firm in its resolve to ensure that inflammatory language does not lace our political discourse. It also means that the President, as head of state must unequivocally show leadership on such matters and on questions of nation-building. It means that the President must, on behalf of all of us, say unequivocally, that the nightmarish visions of an unelected upstart like Julius Malema, dressed in ZANU-PF garb does not represent who and what we are.
Whatever the motive behind the murder, the Terreblanche incident shows that life is cheap; both white life and black life. It is a sad indictment of our society and the depravity which is reflected in these acts. Black people in Ventersdorp now live in fear of reprisals from right-wingers. White farmers continuously live in fear of being murdered and attacked on their farm homes. Whatever the politics of Terreblanche, his murder was a brutal act and must be condemned. It should also provide pause for thought at the hundreds of farmers murdered annually and the many killed in townships and suburbs across our country in random criminal acts. If anything, the state has failed dismally to keep us all safe. We don't need statistics to prove the lawlessness. It is in the suburbs behind electric fences, in the townships amongst mothers afraid to allow children to play outside for fear of being raped or attacked.
We live in uncertain times. Our political leadership has never been as unconvincing since the dawn of democracy. Never before has cross-racial solidarity to advance the gains of 1994 been so crucial. Never before have we needed to build social movements, a powerful media and community organizations to advance the rights of the Constitution, more than now. It is time. It is time for ordinary citizens, business, the academy and communities to take a stand for a decent society with principled leadership. It is time for us to move away from the ‘Malema monologue' and into a dialogue between the millions of peace-loving South Africans who want to see the beloved country prosper.
Source: Polity: INSTITUTE FOR DEMOCRACY IN SOUTH AFRICA: Judith February
Friday, February 5, 2010
Radebe job-hunts for Mpshe
Justice Minister Jeff Radebe has been working hard to secure a new job for the prosecutions chief who dropped charges against President Jacob Zuma, the Mail & Guardian has learned. Mokotedi Mpshe has been appointed an acting judge -- setting him on a path towards a more permanent position on the Bench. It is understood that to pave the way for the appointment, Radebe approached at least two senior high court judges.
Mpshe, who took over as acting National Director of Public Prosecutions after Vusi Pikoli was axed, went on to let Zuma off the hook. The equally controversial Menzi Simelane has since been appointed to the post. Radebe has now finalised Mpshe's appointment in the North West Provincial Division after first trying to get him a post in the Western Cape.
The Constitution allows Radebe, in consultation with the most senior judge of any high court, to appoint acting judges. However, his determined "shopping around" on Mpshe's behalf has fuelled perceptions that Radebe is fast-tracking him to the Bench as a reward for relenting on the graft charges against Zuma. It will raise questions, too, about the separation of executive and judicial powers, still a fraught issue in the aftermath of the long battle over Zuma's charges.
Mpshe decided not to prosecute Zuma after recordings gathered by the National Intelligence Agency (NIA) revealed a political conspiracy against the ruling party's president. He was later forced to admit that much of his legal argument for the decision had been plagiarised from a Hong Kong judgment later overturned on appeal.
A source in the Western Cape division told the M&G that Radebe had telephoned the acting judge president of the division, Jeannette Traverso, to ask that she make an acting position available to Mpshe. The call took place on Wednesday last week, this person said. When it did not bear fruit immediately, it seems Radebe turned to the North West division.
One judge with extensive experience of the procedures surrounding acting appointments told the M&G the "pressure" applied by Radebe was highly unusual. "The way it usually happens is that the judge president concludes that one or more acting judges are required to cover for colleagues working in, for example, the Labour Court, or on long leave. He or she then turns to people who may be considered suitable. "Of course, people may make suggestions -- pointing out a particularly promising advocate, for example. Also, the Council of the Bar may be approached for suggestions. "Previous justice ministers may have lobbied for their friends, but this degree of pressure and shopping around is really extraordinary and disturbing."
Radebe's spokesperson, Tlali Tlali, confirmed that Radebe had approached Traverso but vehemently denied that he had "shopped" around to secure a position for Mpshe: "Those desperate to generate sensation out of this appointment will conveniently omit to state … what our legal framework provides for. The minister exercised constitutionally conferred authority." There was nothing "irregular" about Mpshe's appointment, he said. Radebe's request to Traverso is complicated by the fact that one of the judges on leave in the Cape is her boss, John Hlophe, who was accused of campaigning for the dropping of charges against Zuma.
Traverso, after being a close ally of Hlophe early in his career, was accused by him of racism in 2004-05 and has since been a quiet adversary. Asked whether Mpshe would appear before the Judicial Service Commission (JSC) in April, Tlali said: "That's putting the cart before the horse. The JSC doesn't interview candidates who do not make themselves available for permanent appointment."
The JSC is due to interview candidates for various vacancies in Cape Town from April 12 and the M&G has established that Mpshe's name is not one of the five nominations received to date by the JSC. Traverso did not respond to a telephone message.
Source: Mail & Guardian
Read a follow up commentary by Pierre De Voss on his Blog "Constitutionally Speaking"
Mpshe, who took over as acting National Director of Public Prosecutions after Vusi Pikoli was axed, went on to let Zuma off the hook. The equally controversial Menzi Simelane has since been appointed to the post. Radebe has now finalised Mpshe's appointment in the North West Provincial Division after first trying to get him a post in the Western Cape.
The Constitution allows Radebe, in consultation with the most senior judge of any high court, to appoint acting judges. However, his determined "shopping around" on Mpshe's behalf has fuelled perceptions that Radebe is fast-tracking him to the Bench as a reward for relenting on the graft charges against Zuma. It will raise questions, too, about the separation of executive and judicial powers, still a fraught issue in the aftermath of the long battle over Zuma's charges.
Mpshe decided not to prosecute Zuma after recordings gathered by the National Intelligence Agency (NIA) revealed a political conspiracy against the ruling party's president. He was later forced to admit that much of his legal argument for the decision had been plagiarised from a Hong Kong judgment later overturned on appeal.
A source in the Western Cape division told the M&G that Radebe had telephoned the acting judge president of the division, Jeannette Traverso, to ask that she make an acting position available to Mpshe. The call took place on Wednesday last week, this person said. When it did not bear fruit immediately, it seems Radebe turned to the North West division.
One judge with extensive experience of the procedures surrounding acting appointments told the M&G the "pressure" applied by Radebe was highly unusual. "The way it usually happens is that the judge president concludes that one or more acting judges are required to cover for colleagues working in, for example, the Labour Court, or on long leave. He or she then turns to people who may be considered suitable. "Of course, people may make suggestions -- pointing out a particularly promising advocate, for example. Also, the Council of the Bar may be approached for suggestions. "Previous justice ministers may have lobbied for their friends, but this degree of pressure and shopping around is really extraordinary and disturbing."
Radebe's spokesperson, Tlali Tlali, confirmed that Radebe had approached Traverso but vehemently denied that he had "shopped" around to secure a position for Mpshe: "Those desperate to generate sensation out of this appointment will conveniently omit to state … what our legal framework provides for. The minister exercised constitutionally conferred authority." There was nothing "irregular" about Mpshe's appointment, he said. Radebe's request to Traverso is complicated by the fact that one of the judges on leave in the Cape is her boss, John Hlophe, who was accused of campaigning for the dropping of charges against Zuma.
Traverso, after being a close ally of Hlophe early in his career, was accused by him of racism in 2004-05 and has since been a quiet adversary. Asked whether Mpshe would appear before the Judicial Service Commission (JSC) in April, Tlali said: "That's putting the cart before the horse. The JSC doesn't interview candidates who do not make themselves available for permanent appointment."
The JSC is due to interview candidates for various vacancies in Cape Town from April 12 and the M&G has established that Mpshe's name is not one of the five nominations received to date by the JSC. Traverso did not respond to a telephone message.
Source: Mail & Guardian
Read a follow up commentary by Pierre De Voss on his Blog "Constitutionally Speaking"
Monday, December 7, 2009
Simelane appointment is 'aberration'
Archbishop Emeritus Desmond Tutu on Monday called on President Jacob Zuma to reverse the appointment of national prosecutions boss Menzi Simelane, describing it as an "aberration". "The appointment of advocate Menzi Simelane as National Director of Public Prosecutions is a setback for the integrity of South Africa's post-apartheid legal system," Tutu said in a statement. "Simelane's integrity has been questioned from within his own political party and by his profession."Tutu said a statutory commission, headed by senior African National Congress stalwart Frene Ginwala, deemed him unfit for the job. Tutu was referring to the Ginwala commission of inquiry into whether Simelane's predecessor, Vusi Pikoli, was fit to hold office.In her findings, Ginwala said it seemed that Simelane had tried to interfere in the National Prosecuting Authority (NPA) decision to arrest ex-top cop Jackie Selebi for corruption. She came to this conclusion after Simelane testified at the hearings. But Justice Minister Jeff Radebe last week said Simelane was never given the opportunity to respond to Ginwala's accusations.
However, Tutu said the government's ignoring of Ginwala's finding "besmirches the office of the NDPP [National Director of Public Prosecutions]." "The appointment of one whose ready willingness to act on political instructions has been questioned by a statutory commission does nothing for people's confidence in the law," said Tutu.
The Pretoria Bar Council is currently investigating a complaint against Simelane, related to his appointed as NDPP despite the Ginwala commission findings. Tutu said: "To witness the professional body of South African advocates - Simelane's peers - considering disbarring him is a national embarrassment. This distresses me deeply." He said he had raised his objections with Radebe and Deputy President Kgalema Motlanthe while Zuma was out of the country. "I now appeal to President Zuma to do the right thing. Since his appointment, he has done much to restore the confidence of South Africans in government. But the appointment of advocate Simelane is an aberration. "The appointment should be reversed," said Tutu.
Source: IoL
Tuesday, November 24, 2009
Pikoli, the NPA and the R7.5 million
Pierre De Voss on his blog "Constitutionally Speaking" wrote the following: "It is a pity that Vusi Pikoli decided not to embarrass the government by going ahead with his case in which he was challenging the lawfulness of his suspension and eventual firing as head of the National Prosecuting Authority (NPA). Instead, after a marathon mediation process, Pikoli accepted a R7.5 million settlement in which the government admitted that Pikoli was “competent, somebody with integrity, and dutiful” – in other words that he was indeed a fit and proper person and should never have been fired – and that it respected the independence of the judiciary and the NPA.""This settlement to a large extent vindicates Pikoli and others who have maintained that he was fired on spurious grounds. Pikoli was obviously suspended by then President Thabo Mbeki because he failed to follow the unlawful instructions from then Minister of Justice Brigitte Mbandla, who took a few minutes out ohe her busy tea drinking schedule, to order him not to go ahead with the arrest of Jackie Selebi."
"Mbeki and Mbandla – as became clear at the Ginwala Inquiry – had a strange view of the constitutional requirement that the NDPP must act without fear, favour or prejudice and wrongly thought that the government had the power to order the NDPP to conduct specific investigations and arrests in a particular manner – something forbidden by the Constitution and not authorised by the NPA Act."Source: Constitutionally Speaking
Sunday, November 22, 2009
Pikoli settles for R7m
Former national director of public prosecutions Vusi Pikoli will walk away with R7,5-million after reaching an out of court agreement with the government, the Presidency announced on Saturday. The mediation comes just two days before the matter was to be heard in the North Gauteng High Court. "The two parties acknowledge that a breakdown took place in their relationship, and now wish to restore their relationship to one characterised by mutual trust and respect," presidential spokesperson Vincent Magwenya said in a statement.
The terms of the agreement include, amongst others, that Pikoli withdraw the application before court. "Mr Pikoli shall be paid an amount of R7,5-million in full and final settlement," he said, adding that the government welcomed the "successful" conclusion of this matter.
Pikoli took the government to court over his non-reinstatement after being cleared by the Ginwala Commission. He believes he lost his job because he decided to prosecute former national police commissioner Jackie Selebi.
Source: IoL
Tuesday, August 11, 2009
Zuma welcomes Pikoli judgment
President Jacob Zuma on Tuesday said he respected and would abide by a court ruling in favour of axed prosecutions boss Vusi Pikoli.
"The presidency has noted the ruling in the North Gauteng High Court in the application by former National Director of Public Prosecutions (NDPP) Vusi Pikoli interdicting President Jacob Zuma from making a permanent appointment of a new NDPP. "The president respects the ruling and will abide by it," his office said in a statement.
Source: IoL
"The presidency has noted the ruling in the North Gauteng High Court in the application by former National Director of Public Prosecutions (NDPP) Vusi Pikoli interdicting President Jacob Zuma from making a permanent appointment of a new NDPP. "The president respects the ruling and will abide by it," his office said in a statement.
Source: IoL
Zuma interdicted in Pikoli case
Axed NPA boss Vusi Pikoli scored a significant victory on Tuesday when the North Gauteng High Court interdicted President Jacob Zuma from appointing a successor for Pikoli.
Pikoli, fired by Parliament earlier this year after then president Kgalema Motlanthe recommended his sacking, is fighting his removal from office which, according to him, was ultimately motivated by protecting former police national commissioner Jackie Selebi from prosecution. Judge Ben du Plessis on Tuesday prohibited Zuma from appointing a new National Director of Public Prosecutions, which means Zuma will now have to wait for the outcome of Pikoli’s attempts to be reinstated that will be heard by the same court in November. Advocate Mokotedi Mpshe, a deputy director of public prosecutions, has been acting as NDPP since Pikoli was originally suspended by former president Thabo Mbeki in September 2007.
Source: Mail & Guardian
Pikoli, fired by Parliament earlier this year after then president Kgalema Motlanthe recommended his sacking, is fighting his removal from office which, according to him, was ultimately motivated by protecting former police national commissioner Jackie Selebi from prosecution. Judge Ben du Plessis on Tuesday prohibited Zuma from appointing a new National Director of Public Prosecutions, which means Zuma will now have to wait for the outcome of Pikoli’s attempts to be reinstated that will be heard by the same court in November. Advocate Mokotedi Mpshe, a deputy director of public prosecutions, has been acting as NDPP since Pikoli was originally suspended by former president Thabo Mbeki in September 2007.
Source: Mail & Guardian
Tuesday, December 9, 2008
Ginwala report of enquiry into NDPP Vusi Pikoli
This document, released by the South African government, is the long-awaited Ginwala report of enquiry into the National Director of Public Prosecutions.
It can be accessed here
Source: Polity
Friday, August 1, 2008
Mabandla instruction 'unlawful'
Justice Minister Brigitte Mabandla's order that prosecutions boss Vusi Pikoli not proceed with the prosecution of National Police Commissioner Jackie Selebi so that she can get more information on the matter was a criminal instruction, Pikoli's lawyer Wim Trengove said on Friday.
"That is an unexplained event. It is unconstitutional and unlawful. It is in fact a criminal instruction in terms of the NPA (National Prosecuting Authority) Act," said Trengove.
In the closing argument of the hearing into Pikoli's fitness to hold office, Trengove said there had never been a complaint against Pikoli since he took office in early 2005.
Trengove said that after Pikoli informed President Thabo Mbeki that he had secured a search and arrest warrant against Selebi, the two parted without any discord, except they had not agreed on when Pikoli would execute the warrant.
Mbeki then wrote to Mabandla asking for further details of the plans to arrest and prosecute so that he could create an enabling national security environment, given Selebi's position.
Mabandla asked for all the evidence against Selebi over the last 18 months and told Pikoli not to proceed with the prosecution of Selebi, he said, recapping on information presented at the inquiry. Pikoli wrote back to her saying this would be in breach of the NPA Act and, argued Trengove, this is when a "rupture" occurred.
In a subsequent letter to Pikoli, she did not clarify or retract any of those requests, said Trengove. "We simply don't know how this came about because the minister has never explained it to us, only she can," he said. "What we do know is that this was the beginning of the end."
Trengove said it was clear from the timeline of events that the Selebi investigation was why Pikoli was suspended. He said the government then went on to put out a "false" statement on Pikoli's suspension, saying it was due to an irretrievable breakdown in their relationship.
On his suspension, Pikoli told Mabandla this it was not true that there was no trust between them and she did not contradict him, Trengove submitted. Firing Pikoli would create "a great injustice and incalculable damage," he argued.
The complaint that he did not consider national security by disagreeing about the two weeks Mbeki needed before the planned Selebi action was mentioned for the first time at the start of hearing, he said. He submitted that the charges were unfounded and said the only person who could clarify matters and prove that there was a case was Mabandla. "Where is she?" he asked.
Source: News 24.com
"That is an unexplained event. It is unconstitutional and unlawful. It is in fact a criminal instruction in terms of the NPA (National Prosecuting Authority) Act," said Trengove.
In the closing argument of the hearing into Pikoli's fitness to hold office, Trengove said there had never been a complaint against Pikoli since he took office in early 2005.
Trengove said that after Pikoli informed President Thabo Mbeki that he had secured a search and arrest warrant against Selebi, the two parted without any discord, except they had not agreed on when Pikoli would execute the warrant.
Mbeki then wrote to Mabandla asking for further details of the plans to arrest and prosecute so that he could create an enabling national security environment, given Selebi's position.
Mabandla asked for all the evidence against Selebi over the last 18 months and told Pikoli not to proceed with the prosecution of Selebi, he said, recapping on information presented at the inquiry. Pikoli wrote back to her saying this would be in breach of the NPA Act and, argued Trengove, this is when a "rupture" occurred.
In a subsequent letter to Pikoli, she did not clarify or retract any of those requests, said Trengove. "We simply don't know how this came about because the minister has never explained it to us, only she can," he said. "What we do know is that this was the beginning of the end."
Trengove said it was clear from the timeline of events that the Selebi investigation was why Pikoli was suspended. He said the government then went on to put out a "false" statement on Pikoli's suspension, saying it was due to an irretrievable breakdown in their relationship.
On his suspension, Pikoli told Mabandla this it was not true that there was no trust between them and she did not contradict him, Trengove submitted. Firing Pikoli would create "a great injustice and incalculable damage," he argued.
The complaint that he did not consider national security by disagreeing about the two weeks Mbeki needed before the planned Selebi action was mentioned for the first time at the start of hearing, he said. He submitted that the charges were unfounded and said the only person who could clarify matters and prove that there was a case was Mabandla. "Where is she?" he asked.
Source: News 24.com
Saturday, July 5, 2008
Will Browse Mole nail Pikoli?
Ten years after an intelligence report cost the defence force chief Georg Meiring his job government is pushing hard for suspended prosecutions boss Vusi Pikoli to be sacked in a similar way.
Source: Mail & Guardian
Source: Mail & Guardian
Tuesday, June 24, 2008
Justice DG 'blatantly dishonest' with Ginwala inquiry
Justice and Constitutional Development Department director general Menzi Simelane had been "blatantly dishonest" with the Ginwala inquiry into suspended head prosecutor Vusi Pikoli's fitness to hold office, Advocate Wim Trengove said on Monday. Trengove, representing Pikoli, made the statement on the first day of a second round of hearings before the commission of inquiry chaired by Frene Ginwala.
Trengove was tracing the lines of authority between the National Prosecuting Authority (NPA) and the Justice and Constitutional Development Department, said Simelane was given legal advice that he had no control over the duties of the NPA staff. Trengove accused Simelane of being "blatantly dishonest" about withholding this information from the hearing. He said Simelane should have disclosed the fact that he had been given opinion that supported Pikoli.
"I want to suggest to you your conduct in relation to these opinions had been blatantly dishonest, Mr Simelane," said Trengove.
Simelane replied: "I didn't think there was a need to disclose that I took legal advice." Trengove confronted Simelane for failing to tell the inquiry that he had sought and been given legal opinion. Trengove said that when first asked about it, Simelane said he did not remember. Trengove questioned Simelane on what the Constitution and the NPA Act said about the NPA's powers.
Simelane was of the view that the NPA was a branch of the Justice and Constitutional Development Department and that this meant that he was the accounting officer for the NPA. The legal opinion set out that the NPA Act described the structures of the prosecuting authority and stated that the director general of justice had no part in it. Justice and Constitutional Development Minister Brigitte Mabandla asked Simelane to discuss the issue with Pikoli.
President Thabo Mbeki then suspended Pikoli as National Prosecuting Authority head September last year, citing a "breakdown in the relationship" between Pikoli and Mabandla. But the "breakdown in the relationship" appears to have been between Simelane and Pikoli over the unlawful interference by Simelane in the NPA.
Pikoli's lawyers have said that the real reason for the suspension was the National Directorate of Public Prosecutions' investigation into police National Commissioner Jackie Selebi, who is on special leave pending his corruption and defeating the ends of justice case.
Source: Mail & Guardian
Trengove was tracing the lines of authority between the National Prosecuting Authority (NPA) and the Justice and Constitutional Development Department, said Simelane was given legal advice that he had no control over the duties of the NPA staff. Trengove accused Simelane of being "blatantly dishonest" about withholding this information from the hearing. He said Simelane should have disclosed the fact that he had been given opinion that supported Pikoli.
"I want to suggest to you your conduct in relation to these opinions had been blatantly dishonest, Mr Simelane," said Trengove.
Simelane replied: "I didn't think there was a need to disclose that I took legal advice." Trengove confronted Simelane for failing to tell the inquiry that he had sought and been given legal opinion. Trengove said that when first asked about it, Simelane said he did not remember. Trengove questioned Simelane on what the Constitution and the NPA Act said about the NPA's powers.
Simelane was of the view that the NPA was a branch of the Justice and Constitutional Development Department and that this meant that he was the accounting officer for the NPA. The legal opinion set out that the NPA Act described the structures of the prosecuting authority and stated that the director general of justice had no part in it. Justice and Constitutional Development Minister Brigitte Mabandla asked Simelane to discuss the issue with Pikoli.
President Thabo Mbeki then suspended Pikoli as National Prosecuting Authority head September last year, citing a "breakdown in the relationship" between Pikoli and Mabandla. But the "breakdown in the relationship" appears to have been between Simelane and Pikoli over the unlawful interference by Simelane in the NPA.
Pikoli's lawyers have said that the real reason for the suspension was the National Directorate of Public Prosecutions' investigation into police National Commissioner Jackie Selebi, who is on special leave pending his corruption and defeating the ends of justice case.
Source: Mail & Guardian
Monday, January 14, 2008
Charges against Gerrie Nel withdrawn
Charges against Gerrie Nel, the head of the Directorate of Special Operations (DSO), or the Scorpions, in Gauteng, were withdrawn in the Pretoria Regional Court on Monday "After careful consideration of the evidence in the docket, the decision was made to withdraw the charges," chief prosecutor Matric Lupondo said during Nel's brief appearance.
Nel, who was dressed in a grey suit, managed to avoid the media, who were waiting outside court to get his reaction to the decision. "We are relieved with the outcome and Mr Nel just wants to go back to work and carry out his duties at the DSO," his legal counsel, Ian Small Smith, said. Nel was arrested at his Pretoria home in front of his wife and children at roughly 9pm last Tuesday by about 20 armed policemen. Although the charges were withdrawn, they could be reinstated at some stage, but Small Smith said he doubted this would happen. "They [the police] were widely criticised after the arrest, after [which] the senior prosecutor felt there wasn't a case, which means he should not have been arrested in the first instance, as there was not a case -- so I will be very surprised if there is another arrest," he said. He said should the police decide to recharge Nel, they could just ask him to hand himself over instead of arresting him again.
Small Smith believes that Nel should sue the state for wrongful arrest, but says this is for Nel to decide. "You have to understand that because of his position, there are other role-players here as well ...he is a responsible person and he will act responsibly," Small Smith said. Outside court, National Prosecuting Authority (NPA) spokesperson Tlali Tlali said: "In this particular case an investigation was carried out by the South African Police Service -- as a result of a lack of evidence in this matter, no case has to be answered by Mr Gerhard Nel."
On Wednesday last week, the Democratic Alliance (DA) had said that the arrest of Nel was a witch-hunt to protect police National Commissioner Jackie Selebi. Nel is heading the Scorpions' case against Selebi. "The axing of [suspended NPA head] Vusi Pikoli and now Gerrie Nel has all the appearance of a witch-hunt to protect Selebi," said DA spokesperson on Safety and Security Dianne Kohler Barnard. "The fact that it allegedly took 20 armed policemen to serve the warrant on Nel further reinforces this," she said.
Police spokesperson Superintendent Lungelo Dlamini had said Nel faced five charges including fraud, defeating the ends of justice and perjury. The charges are apparently related to offences allegedly committed between 2004 and 2005.
Meanwhile, Selebi's legal team were on Monday waiting for a date for a hearing for his application to stop an investigation against him after last week's attempt to have it heard urgently failed. "The judge president must provide a date for a full bench," said Selebi's advocate, Jaap Cilliers. Selebi stepped down from his post on Saturday and resigned as head of Interpol on Sunday. On Friday, the Pretoria High Court did not grant Selebi's application to have the matter heard urgently and it was struck off the roll, but the parties will arrange a date for the actual argument. In Selebi's notice of motion, he had wanted to ask for an interdict prohibiting the Scorpions and the Ministry of Justice and Constitutional Development from instituting any criminal prosecution against him, or taking any further steps in any envisaged criminal prosecution. He also wanted a copy of the allegations against him and an opportunity to answer them, to see copies of information justifying warrants of arrest issued against him, and copies of affidavits relating to him.
In court papers, the acting National Director of Public Prosecutions Mokotedi Mpshe said the NPA was ready to charge Selebi with corruption and defeating the course of justice. Alleged corrupt relations with murder accused Glen Agliotti, payments to the amount of R1,2-million and turning a blind eye to drug-smuggling were some of the reasons why they wanted to charge him, the court heard. "The charges against him are based on a strong prima facie case supported by the testimony of a range of witnesses and corroborated by real evidence," Mpshe said.
The NPA said it would meet this week to discuss how to proceed with the case. On Monday, Tlali said the options were either to go ahead with the Selebi matter regardless of Selebi's outstanding application, or to wait for the court to pronounce on Selebi's pending application. The NPA has said it would let Selebi know when it planned to make a move. "He will not be cuffed," said Tlali.
Cilliers said on Monday morning that as far as he knew, Selebi had not yet received notice that he would be wanted in court.
Source: Mail & Guardian
Nel, who was dressed in a grey suit, managed to avoid the media, who were waiting outside court to get his reaction to the decision. "We are relieved with the outcome and Mr Nel just wants to go back to work and carry out his duties at the DSO," his legal counsel, Ian Small Smith, said. Nel was arrested at his Pretoria home in front of his wife and children at roughly 9pm last Tuesday by about 20 armed policemen. Although the charges were withdrawn, they could be reinstated at some stage, but Small Smith said he doubted this would happen. "They [the police] were widely criticised after the arrest, after [which] the senior prosecutor felt there wasn't a case, which means he should not have been arrested in the first instance, as there was not a case -- so I will be very surprised if there is another arrest," he said. He said should the police decide to recharge Nel, they could just ask him to hand himself over instead of arresting him again.
Small Smith believes that Nel should sue the state for wrongful arrest, but says this is for Nel to decide. "You have to understand that because of his position, there are other role-players here as well ...he is a responsible person and he will act responsibly," Small Smith said. Outside court, National Prosecuting Authority (NPA) spokesperson Tlali Tlali said: "In this particular case an investigation was carried out by the South African Police Service -- as a result of a lack of evidence in this matter, no case has to be answered by Mr Gerhard Nel."
On Wednesday last week, the Democratic Alliance (DA) had said that the arrest of Nel was a witch-hunt to protect police National Commissioner Jackie Selebi. Nel is heading the Scorpions' case against Selebi. "The axing of [suspended NPA head] Vusi Pikoli and now Gerrie Nel has all the appearance of a witch-hunt to protect Selebi," said DA spokesperson on Safety and Security Dianne Kohler Barnard. "The fact that it allegedly took 20 armed policemen to serve the warrant on Nel further reinforces this," she said.
Police spokesperson Superintendent Lungelo Dlamini had said Nel faced five charges including fraud, defeating the ends of justice and perjury. The charges are apparently related to offences allegedly committed between 2004 and 2005.
Meanwhile, Selebi's legal team were on Monday waiting for a date for a hearing for his application to stop an investigation against him after last week's attempt to have it heard urgently failed. "The judge president must provide a date for a full bench," said Selebi's advocate, Jaap Cilliers. Selebi stepped down from his post on Saturday and resigned as head of Interpol on Sunday. On Friday, the Pretoria High Court did not grant Selebi's application to have the matter heard urgently and it was struck off the roll, but the parties will arrange a date for the actual argument. In Selebi's notice of motion, he had wanted to ask for an interdict prohibiting the Scorpions and the Ministry of Justice and Constitutional Development from instituting any criminal prosecution against him, or taking any further steps in any envisaged criminal prosecution. He also wanted a copy of the allegations against him and an opportunity to answer them, to see copies of information justifying warrants of arrest issued against him, and copies of affidavits relating to him.
In court papers, the acting National Director of Public Prosecutions Mokotedi Mpshe said the NPA was ready to charge Selebi with corruption and defeating the course of justice. Alleged corrupt relations with murder accused Glen Agliotti, payments to the amount of R1,2-million and turning a blind eye to drug-smuggling were some of the reasons why they wanted to charge him, the court heard. "The charges against him are based on a strong prima facie case supported by the testimony of a range of witnesses and corroborated by real evidence," Mpshe said.
The NPA said it would meet this week to discuss how to proceed with the case. On Monday, Tlali said the options were either to go ahead with the Selebi matter regardless of Selebi's outstanding application, or to wait for the court to pronounce on Selebi's pending application. The NPA has said it would let Selebi know when it planned to make a move. "He will not be cuffed," said Tlali.
Cilliers said on Monday morning that as far as he knew, Selebi had not yet received notice that he would be wanted in court.
Source: Mail & Guardian
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