Can Simelane run the NPA at all? It is in revolt and leaking like a sieve

A new ground for challenging the appointment of Adv Menzi Simelane as National Director of Public Prosecutions is emerging as his decision to stop forfeiture proceedings against alleged arms deal facilitator Fana Hlongwane leads to a series of media exposures.

The fitness and propriety of Adv Simelane are already the subject of two separate proceedings triggered by a lack of confidence in his integrity and impartiality. The Bar Council is conducting an enquiry, and the DA has an application pending to have his appointment as NDPP reviewed and set aside.

But the question now arises whether, in addition, he can run the National Prosecuting Authority at all? And if he cannot, should Parliament in the course of its oversight duties recommend that the President looks at a provisional suspension pending an enquiry into his capacity to carry out his duties of office efficiently? The NPA Act provides for such suspension and enquiry not only on the grounds brought against former NDPP Vusi Pikoli, but also on these grounds.

The fact is that the NPA is visibly divided, in revolt, and leaking like a sieve. The Mail and Guardian on Friday revealed in detail how Asset Forfeiture Head Willie Hofmeyr was prevented from following up a preservation order with a forfeiture application against Mr Hlongwane's Liechtenstein accounts. No sooner had that story concluded with a quote from "the NPA" to the effect that there is no evidence of criminal conduct on the part of Mr Hlongwane than the Sunday Times today has come into possession of 500 pages of such evidence. This is reported to include a 106 page affidavit by Deputy DPP Billy Downer, who is quoted as stating that there are reasonable grounds to believe that he committed the offences of corruption, fraud, money-laundering and/or racketeering in the context of the arms deal and derived financial reward.

Without entering into the merits of the decision to stop proceedings (but recalling that Adv Simelane told the assembled NPA in October that he had been deployed to his new post and that his task included implementing the ANC's vision for the NPA), we clearly need to ask how the NPA can function in these circumstances and maintain the public confidence required for the proper administration of justice. The NPA was supposed to appear before the Parliamentary Justice Portfolio Committee on Tuesday for the purpose of presenting its strategic plan and budget, but we learnt on Friday that Adv Simelane was not in the office and not ready to present.

The President and Minister of Justice are apparently not ready to proceed in the matter of the DA's application either. It should have been heard in mid-April, but now looks set to be delayed until September. They also, for reasons best known to them, changed advocates and delayed filing papers.

This appointment should never have been made. Instead of scurrying around looking for answers to our application, the Presidency should take a long hard look at instituting a suspension and enquiry.

Statement issued by Dene Smuts, MP, Democratic Alliance shadow minister of justice and constitutional development, March 21 2010

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