Appointment of Adv Menzi Simelane as the National Director of Public Prosecutions

The appointment of advocate Menzi Simelane, former Director General of the Department of Justice as National Director of Public Prosecutions (NDPP), is cause for grave concern.  Not only was he largely instrumental in the dismissal of his predecessor, advocate Vusi Pikoli, but serious question about his integrity, competence and impartiality were raised by the Ginwala Commission, which was the Commission charged with assessing advocate Pikoli's fitness to hold the office of the NDPP.

In contrast to its finding regarding advocate Pikoli who it found was, indeed, a "fit and proper" person to hold the office, the Commission felt compelled to express its displeasure at the conduct of advocate Simelane. It found both his preparation of the Government's submissions and also his oral testimony to be inaccurate or without any basis in fact and law and found that many of his complaints made against advocate Pikoli "were spurious, and are rejected without substance, and may have been motivated by personal issues." It found his conduct in so far as it related to the Minister, to be highly irregular.

The full import of his appointment must be understood in light of the powers which vest in the National Prosecuting Authority (NPA) and the requirements of the Rule of Law, which is a founding value of our Constitution. In its most basic form, the Rule of Law means that no one is above the law and that all laws have to be in accordance with the Constitution. The Constitution requires that everyone is equal before the law and has equal protection and benefit of the law. The NPA is vested with the power to institute criminal proceedings on behalf of the State. The NPA thus bears the sole responsibility for determining who will, and who will not be, prosecuted.

In order to ensure that all are equal before the law, and specifically that no-one is above the law in the exercise of this function, the NPA is constitutionally bound to act without "fear, favour or prejudice". Its prosecutorial independence is further guaranteed by the National Prosecuting Act which prohibits interference by any organ of state or member of an organ of state. The NDPP is charged with ensuring the effective functioning of the NPA and is, inter alia, specifically empowered to review a decision to prosecute or not to prosecute. In order to exercise this prosecutorial discretion independently, that is without "fear, favour or prejudice", the NDPP is required in terms of the Constitution, to be a "fit and proper person."

The phrase "fit and proper" in this regard is the same as is required of all judicial officers and has a well-established juristic meaning. It alludes to the personal qualities of honesty, integrity and reliability. It requires that the person possesses sufficient experience, scholarship, intellectual integrity and emotional maturity to act without "fear, favour or prejudice" - in other words, to be able to act independently.

What this means is that the independence of the National Prosecuting Authority (NPA) is one of the cornerstones of our justice system.  If the NDPP cannot exercise his or her function with absolute independence, "without fear, favour or prejudice" as the Constitution requires, our whole system of justice is open to abuse.  This is particularly the case when the prosecuting authority is required to prosecute senior politicians and officials who may be guilty of criminal acts or corruption.

The findings that advocate Simelane acted out of malice are thus particularly disturbing. Equally disturbing is the finding that he interfered with the independence of the NPA by drafting a letter, which was signed by the Minister, instructing the NDPP to abort the imminent arrest of the National Commissioner of Police.

The Commission pointed out that Simelane should have been "acutely aware of the constitutional protection afforded to the NPA to conduct its work without fear, favour or prejudice" and concluded that "[t]he contents of the letter were tantamount to executive interference with the prosecutorial independence of the NPA". Further doubt has been cast on his impartiality more recently by the alleged comments on his recent transfer from his position of Director General to one of the NPA's four National Directors of National Prosecutions that he is here to serve the party. He is alleged to have claimed to have been deployed by the ANC to this position and that "part of his task was to implement the ANC's vision of the NPA."

Doubt was also cast on his competency by the Commission's findings that he had an incorrect understanding of his accounting responsibilities under the Public Finance Management Act, despite being in possession of legal opinions from senior counsel explaining the ambit of his responsibilities. He allowed the Minister to continue with an incorrect understanding of the responsibilities of the NDPP.

Adv Simelane's appointment should not be seen in isolation, particularly since it coincides with President Zuma's term of office. Should the current challenge to the decision of the acting NDPP to drop charges against President Zuma be successful, the appointment may also have implications for the future leadership of South Africa, since it will then be up to advocate Simelane to determine whether or not to institute criminal proceedings. The effect of the appointment thus goes beyond the efficacy of the National Prosecuting Authority. It cuts to the very root of our Criminal Justice system and the Rule of Law on which that is premised.

Adv Nikki de Havilland is director of the Centre of Constitutional Rights of the FW de Klerk Foundation.

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