Simelane case: DA to seek leave to appeal North Gauteng High Court judgment
Last week, the North Gauteng High Court dismissed an application by the Democratic Alliance (DA) to have the decision of President Zuma to appoint Adv Menzi Simelane as National Director of Public Prosecutions set aside, on the grounds that Adv Simelane is not a "fit and proper person" to be appointed to this post.
The Democratic Alliance has studied last week's judgment carefully and has consulted its legal team. We believe we have a strong legal case and that another court could well come to a different conclusion.
The case concerns issues that are of such critical importance to the future of our country and to the integrity of our legal system that we believe we have a responsibility to appeal this judgment. We will accordingly be instructing our lawyers to prepare an application for leave to appeal this judgment either to the Supreme Court of Appeal or directly to the Constitutional Court.
The DA pursued the application for Adv. Simelane's appointment to be set aside because the NDPP occupies an absolutely crucial role in the administration of justice in South Africa. There is a perception that prosecutions are initiated and discontinued on political grounds, and this affects the way in which the courts are viewed, and the extent to which the criminal justice system is believed to be even-handed and impartial. It goes without saying therefore that whoever occupies that position must be a person of unimpeachable integrity and of legal competence.
Acting Judge Van der Byl's judgment was highly critical of Adv Simelane. It reads, in paragraph 76, as follows:
"The averments made by the DA, after an extensive investigation and consideration of Mr Simelane's background, indeed constitute a formidable onslaught on Mr Simelane's fitness and propriety for appointment as NDPP and therefore also on the validity of the President's decision."
Paragraph 80 reads in part as follows:
"...it would appear that relative superficial consideration had been given to the election of a suitable candidate for appointment in the position of NDPP. There is no indication that the President has given any attention to any possible candidates. On the contrary, all indications are that the President had, at some stage, as it was, perhaps, his right to do so, favoured Mr Simelane, and no one else, for the position of NDPP."
In paragraph 90, the Judge refers to Adv Simelane's actions while he was a Competition Commissioner, and remarks that he had shown:
"...an over-eagerness on his part, albeit an ill-considered one, to draw attention to the Commission's role and function..."
And in paragraph 100, the Judge remarks
"I am not persuaded that, if regard is had to all the averments made in the papers that he is not an uncontroversial person and one with an unblemished background or that he is one of the most experienced persons who could have been taken into consideration for appointment."
Having made all these comments on his ability and suitability for appointment the Judge nonetheless dismissed the application largely because "in the absence of any prescribed process" he was "unable to hold that the process followed was irrational as the President's aim was...to determine whether Mr. Simelane was a fit an proper person for appointment..."
We will now seek leave to appeal this decision.
Statement issued by James Selfe, MP, Democratic Alliance federal chairperson, November 14 2010
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