The Supreme Court of Appeal has struck down the appointment of Menzi Simelane as National Director of Public Prosecutions as unlawful and invalid. It is fervently to be hoped that the President will carefully consider the ruling and desist from the temptation to take the matter further on appeal to the Constitutional Court.
The word on the street, for what it is worth, is that Simelane is to be "re-deployed" to a political position, hopefully one that is not in the public administration and is more suited to his talents as a politician rather than as a lawyer or prosecutor.
It is not in the interests of the public that there be long running litigation over so sensitive and so central an issue, namely whether a legal and rational decision was properly taken in promoting Adv Simelane to the position he occupied: the only civil servant in the country who is accorded policy making powers in the Constitution and a functionary who (along with judges and Chapter Nine Institutions) is enjoined by the Constitution to function "without fear, favour or prejudice" [section 179(4) and (5)]. This phrase has been interpreted to mean "independently" by the Constitutional Court. In addition to this constitutional requirement, the NDPP is required by legislation to swear an oath of office in which his or her independence is solemnly re-affirmed.
Adv Simelane is, and always has been, a deployee of the national democratic revolution that drives elements of the governing alliance. His primary loyalty is to the ANC. Prior to the dissolution of the Scorpions, he took time off from his job as Director General of Justice and campaigned actively among the rank and file of the ANC in Kwazulu-Natal to ensure that the demise of the Scorpions was accepted by the majority of the members of the tripartite alliance. When he joined the NPA, months before his promotion to its leadership a short two years ago, he blithely announced to his new colleagues that he perceived his role in the prosecuting authority as one in which he would "implement the ANC's vision for the NPA".
This vision is not one that is compatible with the requirements of the Constitution. The NDR contemplates a future in which the alliance will enjoy hegemonic control of all the levers of power in society.
Not for it a pesky NDPP like the predecessor of Adv Simelane, who independently decided to prosecute the Chief of Police (with success) and Jacob Zuma (without success). Vusi Pikoli was suspended for the first of these two decisions and fired for the latter. He contested his dismissal and eventually settled on the steps of the court for a R7,5 million pay-out, one which ought not to have eventuated if there was any good reason to dismiss him. Would that Adv Pikoli could be persuaded to leave the private sector to replace Simelane; fat chance that President Zuma would even consider such a move.