Adv Menzi Simelane remains the NDPP until a competent court confirms otherwise

Amid a lot of fanfare and excitement by the leading opposition party, which is now calling for the head of the National Director of Public Prosecutions to roll, after the Supreme Court of Appeals judgment on the invalidity of his appointment; there is very a poor understanding or interpretation of the law by the DA. That at least is how an unsuspecting member of the public would view this hollow victory and ululation by the said opposition party.

If however such a member of the public were as privy, to the dirty agenda of the DA, as I am; then it would be a difference story altogether. The call by the DA leader, a former journalist and member of that ever bickering political party (Ms Helen Zille), for Adv Simelane to vacate his office is not only absurd but it is equally mischievous. The only logical explanation for this premature call is that it is only meant to score cheap political points which in the end will achieve naught though.

What should be clear to everyone is that the Supreme Court of Appeal  (i.e. SCA) did not rule on whether Adv Simelane is fit and proper or not as she had requested but instead they ruled on the invalidity of the process that was followed in his appointment. These should appreciably be separated as two different scenarios, providing for two different outcomes (if at al).

Chapter 5 of the Constitution under Section 84 is crystal clear on the Powers and functions of the President and equally so it is clear under Section 85 on the Executive authority of the Republic, in that it, "is vested in the President". The constitution under Section 179 (1) on the Prosecuting authority is equally very explicit and it provides thus: 

There is a single prosecuting authority in the Republic, structured in terms of an Act of Parliament, and consisting of -

(a) a National Director of Public Prosecutions, who is the head of the prosecuting authority, and is appointed by the President, as head of the national executive and

(b) Directors of Public Prosecutions and prosecutors as determined by an Act of Parliament

So clearly, no court of law can second guess the President's powers and authority as enshrined in the constitution in this regard then, or can they?. As such Mr Zuma can still very well follow due process and reappoint Adv Simelane thus serving to ratify whatever decision/s Simelane has taken over the past two years.

This interpretation will continue to hold true unless the leader of the opposition can change the constitution but since her party is a minority in Parliament, she can't muster that democratic process through a vote hence she can only abuse the courts for political gain as usual.

This is something that not so long ago she accused the governing party of trying to do and yet she is the one who is now trying to subvert the the constitution and provisions. The courts do not have the powers to legislate albeit these days they are treading treacherously in the territory of the legislators whereas the judiciary's duty and role is limited to the interpretation and implementation of statutes.

Another provision of the constitution, Section 172 2 (2), which talks about the Powers of courts in constitutional matters is very clear and hence in the title of my piece, I said "Adv Simelane remains the NDPP until a competent court confirms otherwise". This relevant section provides thus:

(a) The Supreme Court of Appeals , a High Court or a court of similar status may make an order concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct of the President, but an order of constitutional invalidity has no force unless it is confirmed by the Constitutional Court

So what then is Ms Helen Zille on about when she challenges Mr Zuma to appoint an Acting National Director of Public Prosecutions when she must surely know very well that the SCA ruling is not final on the invalidity of Adv Simelane's appointment?

Is Ms Zille jumping the gun here or is she indirectly trying to tell South Africa that the Constitutional Court's verdict is a foregone conclusion and that she is privy to the likely verdict that the Constitutional Court will pronounce on?

That wouldn't surprise of course, given the acrimonious history of false accusations by the 9 of the 11 Constitutional Court judges in another case which pertains to Western Cape, Judge President John Hlophe. That matter is yet another conundrum that is facing the Constitutional Court because all 9 judges (now 8 of course after the retirement of former Chief Justice Pius Langa) would have had to recuse themselves in the Hlophe appeals case.

This case created a crisis in the formation of a quorum and it's a stalemate if you ask me because if 8 Constitutional Court judges have a serious issue to grind with another member of the judiciary, even making false and unfounded accusations that he tried to solicit a favourable verdict in a case involving the President of the republic, they then can't sit to hear his appeal because of the simple fact of a conflict of interest as some of them were witnesses against him.

That being the case, it therefore means that they are not suitable to hear any case which involves the President either and especially one that seeks to second guess his powers or that which seeks to undermine his authority (as is the case with Simelane matter).

Those 8 judges are likely to find against the President in order to spite him which is where their unsuitability comes into being. It is not an accident that Adv Simelane's appointment is being challenged in court and that the SCA found against the President. It will be remembered that even during the President's legal travails, the SCA is one court that was consistent in finding against him when all other courts applied the law impartially.

This challenge is actually part of a carefully thought out plot to incapacitate the President and ensure that hostile jurists are appointed so that they may one day haul him into a court of law to answer for those fabricated corruption charges. That course of action on the part of the opposition and those who collaborate with them or are in cohorts in the justice system though would be tantamount to someone cutting their nose in order to spite their face.

Section 172 of the Constitution continues to provide thus:

(b) A court which makes an order of constitutional invalidity may grant a temporary interdict or other temporary relief to a party or may adjourn the proceedings, pending a decision of the Constitutional Court on the validity of that Act or conduct

A further sub section provides thus:

(d) Any person or organ of state with a sufficient interest may appeal or apply, directly to the Constitutional Court to confirm or vary an order of constitutional invalidity by a court in terms of this subsection

Now, clearly from the above sub sections of the Constitution, the DA leader must surely know that Adv Simelane and/or the Presidency and/or the Department of Justice can still appeal the verdict. As questonable a judgment by the Supreme Court of Appeals as it may be but as law abiding citizens we certainly respect it and we have no intention of undermining the judiciary because of a few bad apples within the system. 

Another sub section provides thus:

(c) National legislation must provide for the referral of an order of constitutional invalidity to the Constitutional Court

Simply translated, this provision means that whether or not the trio choose to appeal the SCA judgment, it will automatically be forwarded to the Constitutional Court.

One can safely conclude then that the DA leader and those academics like Prof Pierre de Vos as well Shadrack Gutto are making much ado about nothing. One is confident though that sanity will prevail when this case reaches the ConCourt and I believe that they will reverse this absurd ruling. The Constitutional Court is ably led by Chief Justice Mogoeng who should surely be taking notes that colleagues in the judiciary are trying to undermine democracy by imposing on the executive who has a mandate from voters of this country. 

Musa Xulu

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