Extract from the Democratic Alliance's responding affidavit in the legal action against President Jacob Zuma's appointment of Menzi Simelane as the National Director of Public Prosecution, February 9 2010
10. The office of the NDPP had thus been embroiled for over two years in a public dispute involving questions as to fitness for office, in circumstances where the motives of the President for removing the NDPP had been called into question, where the same report on which the President had relied to remove Mr Pikoli criticised Mr Simelane in far stronger terms, and where Mr Simelane had been the main mouthpiece for the Department of Justice in frying to make the case of unfitness against Mr Pikoli.. Against that background, a person wishing to ensure that the new NDPP truly met the requirements of s 179(4) of the Constitution and s9 of the NPA Act would or should have taken proper steps to inform himself of the candidate's fitness for one of the most important positions in South African public life.
11. Even in the ordinary course, but particularly against the abovç background, I submit that the President could not have properly exercised his power of appointment when the only document before him was Mr Simelane's CV.
12.The first point I make in that regard is that the President did not have before him the CVs of any other possible candidates. I thus infer that Mr Simelane was the only person the President considered. If the President had approached the appointment in accordance with the requirements of the Constitution and s9 of the NPA Act it cannot have been the case that there was only one possible candidate for the President to consider. He should have had before him the CVs (and other relevant documents) relating to a group of possible candidates so that he could select the best one. In any event, the fact that the President had only Mr Simelane's CV before him supports the DA's contention, set out later herein, that the President had at an earlier stage already made up his mind to appoint Mr Simelane.
13. In regard to Mr Simelane's CV I point out the following:
13.1 To the extent that the CV sets out the positions held by Mr Simelane, it is only of marginal assistance in determining his experience and says nothing at all about his conscientiousness and integrity.
13.2 The last page of the CV is a brief selfeassessment by Mr Simelane. A candidate's statements of his own abilities are no sufficient material to establish that he is a fit and proper person as contemplated in s9(1) of the NPA Act.
14. I do not say that Mr Simelane's CV should have contained more detail. Its format and content may have been fairly standard for a CV. What I contend is that such a CV is a hopelessly insufficient basis for taking a decision to appoint Mr Simelane as the NDPP.
15. Given that Mr Simelane's CV was the only document before the President, it is worth emphasising the following aspects revealed by the CV:
15.1 Mr Simelane was very young at only 38 at the time of Ms proposed appointment
15.2 Mr Simelane in his mid-twenties had practised for two years as an advocate. No details were given concerning any cases in which he had appeared.
15.3 Thereafter he had held positions at the Competition Commission and in the Department of Justice ("DoJ"), neither of which by their nature would have involved Mr S imelane in court work or the investigation and prosecution of crime.
15.4 He had only served for about six weeks (as one of four Deputy NDPPs) in the NPA, and thus for practical purposes had no working experience in the NPA.
16. The CV thus indicated that Mr Simelane was very young and inexperienced to hold the position of NDPP.
17. Another thing the President would have learnt from Mr Simelane's CV was that Mr Simelane was shoddy in the way he prepared documents. A candidate who presents a CV littered with spelling and grammatical errors would in the ordinary course receive short shrift from a prospective employer. Mr Simelane, in presenting his credentials, allowed to go to the President a document with the following errors:
17.1 The very first word on the title page of the CV, namely "Curriculum ", was misspelt.
17.2 His ID number on page 2 was incomplete (a South African ID number consists of 13 digits).
1743 On the same page he misspelt "qualjflcation".
17.4 The word "pupillage" on page 3 was misspelt.
17.5 There are at least nine errors on page 5 ("practicing" and "until in" in the first paragraph; the year "1996" (instead of "1999 ") in the first line of the second paragraph; the omission of necessary prepositions in the fourth and seventh lines of the second paragraph; the use of "as" and "of' in the third and sixth lines of the fourth paragraph, when "at" and "on" were presumably intended; the statement at the end of the fourth paragraph that Mr Simelane's style of open dialogue "makes decision easer" [sicj; and the statement in the final paragraph that "[m]y weakness include [sic} my strength ".
18. The slipshod way in which Mr Simelane prepared his CV reflects negatively on his conscientiousness. More disturbingly, the lack of care which he devoted to the task justifies, in conjunction with all the other considerations set out in this affidavit and my earlier affidavit, the inference that Mr Simelane knew that his CV was unimportant because the President had already decided to appoint him.
19. Because the CV on its own was plainly insufficient, the President should have used the CV as a basis for making appropriate enquiries and investigations:
19.1 First, the Minister should have sought reports on Mr Simelane's performance from those to whom he had reported
in his previous positions. Such requests by the President could have been directed to the DII (in respect of Mr Simelane's employment at the Competition Commission) and to the DoJ (in respect of Mr Simelane's employment as DG of the DoJ).
19.2 Second, in respect of Mr Simelane's employment as DG of the DoJ, there are various documents which could be expected to reflect on his performance:
19.2.1 These include his annual performance agreement (required in terms of s12(2)(b) of the Public Service Act 1994 read with clause 7 of the contract prescribed in Part 1 of annexure 2 to the Public Service Regulations). Such a performance agreement is required by law to contain "clear performance areas/criteria/deliverables" for the department and the head of the department. (In terms of Schedule 1 to the Public Service Act, the DG is the "head" of the department).
19.2.2 One would also expect there to be annual reports or assessments of Mr Simelane's performance so as to monitor compliance with his performance agreement and also for use in the determination of his annual salary increases.
19.2.3 There would also be annual reports by the Auditor- General concerning the DoJ, in respect of which Mr
Simelane was the accounting officer. These reports and any qualifications therein would or might reasonably be expected to reflect on Mr Simelane's ability to manage a large department.
19.3 Third, similar enquiries should have been made about Mr Simelane's earlier employment, particularly as Competition Commissioner. Officials in the DTI could be expected to be in possession of performance agreements, annual reviews and the like relating to the discharge by Mr Simelane of his duties under s22(3) of the Competition Act 89 of 1998.
20. The rule 53 record does not include any letters from the President to the relevant departments and officials requesting reports and documents of this kind, nor are any reports and documents of that kind among those which were before the President. They are not even identified in the first notice as documents considered by the current Minister of Justice, Mr Radebe. In this latter regard, I point out that Mr Radebe was only appointed as Minister of Justice on 10 May 2009, having previously been the Minister of Transport. His time in the DoJ thus only overlapped for six months of Mr Simelane's approximately four and a half years at the DoJ.
21. 1 cannot say exactly what would have emerged had the President caused these enquiries to be made and investigated the resultant information, but I submit that the failure to make them and to receive and consider reports meant that the President was not in a position to make a proper judgment as to whether Mr Simelane was a fit and
proper person as required by s9 of the NPA Act. I contend, further, that the President's failure to make these enquiries also supports the DA's contention that the President not only acted irrationally but also is reasonably suspected of bias. I say this because his failure to
make the enquiries indicates that he had no genuine desire to assess Mr Simelane's suitability in accordance with s9 of the NPA Act.
22. Although I cannot say exactly what would have been revealed, one of the things that would have emerged from such enquiries is that the DoJ received a qualified audit from the Auditor General in each of the financial years of Mr Simelane's tenure as the DoJ's DG and accounting officer. The list of reasons for the AuditorGenera1's qualifications appear to have grown over the five-year period. On the face of it, this state of affairs casts serious doubt on Mr Simelane's suitability for appointment as NDPP. In any event, it is in the DA' s submission unacceptable that the President should have appointed Mr Simelane without finding out about and investigating the reasons for the ongoing qualifications and Mr Simelane's responsibility.
23. I annex as "JS 11" to "JS 14" the said qualified audit reports of the Auditor General for the DoJ's financial years ended 31 March 2006, 2007, 2008 and 2009. I draw attention to the following:
23.1 In the 2006 report the qualification concerned the manner in which trust monies (later referred to as third party funds) were accounted for and the lack of an effective and efficient management system over such monies.
23.2 The 2007 report reflects that this problem persisted and that the DoJ had disregarded a National Treasury instruction dated 15 August 2007 as to how the matter hold be dealt with. As a result the DoJ's financial statements were materially misstated.
23.3 The 2007 report also added a further ground of qualificati0fl namely that there were various deficiencies in the DoJ's asset register.
23.4 The 2008 qualification included, yet again, matters relating to accounting for third party funds and for capital assets. In addition, the AuditOrGenh1 qualified his report because the DoJ's commitments were misstated by material amounts which could not be accurately determined and because of irregular expeUdit11e in the amount fR57 millions.
23.5 The 2009 report was the most heavily qualified. The issues relating to third party funds and capital assets were again problematic. On neither of these topics did the Auditor- General obtain all the information and explaflati01 he considered necessary to satisfy himself as to the completeness and accuracy of the DoJ's records. Other grounds of qualification included inadequate Control over staff leave (making it impossible for the AG to satisfy himself concerning leave entitlements in the amounts of R397 million and R214 million), financial leases and irregular expenditure.
23.6 I should add that qualified audit reports were not the norm at national government department level. In the 2009 financial year only 12 out of 34 national departments received qualified audits.
24. Another thing which the President may have learnt if he had made enquiries about Mr Simelane's tenure as Competition Commissioner is the criticism of him expressed in the unanimous judgment of the Supreme Court of Appeal in Pretoria Portland Cement Co Ltd and Another v Competition Commission and Others 2003 (2) SA 385 (SCA), a copy whereof is annexed marked "JSI5":
24.1 According to the judgment, this case arose out of the execution of search warrants granted on the ex parte application of the Competition Commission in August 2000.
24.2 The court found that the Commission had invited TV crews from the SABC and e-TV to accompany the Commission's officials during the resultant raid on a company's premises, and that this was in violation of the ex parte order which prohibited publication until the order had been executed.
24.3 The court found, further, that the Commission's officials had failed to furnish to the company a copy of the affidavit on the strength of which the Commission had obtained the ex parte order so that the company and its attorneys could take legal steps to set aside the warrant. It was found that the
Commission had used evasion and dishonest explanations to thwart the company.
24.4 It emerged that at midday and during the course of the search Mr Simelane (the Commissioner) was in the company's car park giving an interview to the SABC.
24.5 The court found that Mr Simelane had used deception in gaining entry to the company's premises by falsely claiming that he was entering to visit the company's managing director.
246 The court said that the Commission had been intent on advertising itself "with no regard to the harm it might do to its suspects" (para 62); that the impression of publicity-seeking was reinforced by Mr Simelane's uninvited media interview held at the company's own car park (para 63); that the whole conduct of the Commission's representatives "smacks of rampant triumphalism" (para 66); and that the court took a serious view of the Commission's conduct and had to make it clear that it would not allow persons or businesses to be subjected to abuses of power and gross violation of privacy (para7l).
24.7 The court set aside the entire proceedings starting with the .obtaining of the ex parte order. The Commission was ordered to return the seized documents.
248 Although this is not explicitly stated in the judgment, it is impossible to suppose that the TV crews were invited or that the other abuses occurred without Mr Simelane's direct complicity. He was the Commission's most senior functionary, and he was present during the raid and gave an interview.
Source: Democratic Alliance Media Centre (PDF), February 9 2010
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