No evidence at all that Simelane will act without fear, favour or prejudice
The Justice Minister Jeff Radebe needs to explain why he quoted selectively, misrepresented the facts, and ignored basic tenets of the law in his defence of Menzi Simelane's appointment as national director of public prosecutions.
In doing these things, the minister effectively showed that the ANC government will not be held accountable to anyone, that they will not subject themselves to the rule of law, and they do not feel the need to justify their actions to anyone.
In particular, the minister's statements on three key areas of Simelane's involvement in the Ginwala Inquiry display a frankly breathtaking level of incoherence.
1. The role of the NPA: Like Menzi Simelane, Minister Radebe shows a fundamental misunderstanding of the parameters in which the National Prosecuting Authority and Justice Department operate.
In particular, the minister provides an entirely insufficient justification for former Justice Minister Brigitte Mabandla's letter, dated 18 September 2007, to National Director of Public Prosecutions Vusi Pikoli, which the Ginwala Inquiry found "tantamount to executive interference". This is the letter in which Minister Mabandla instructed Adv Pikoli not to proceed with the arrest of Jackie Selebi until further information had been supplied to her. The letter is significant here because it was Simelane, then Director General at the Department of Justice, who drafted it.
Minister Radebe attempts to justify this intervention on the grounds that "[t]he minister is entitled to be kept informed in respect of all prosecutions initiated or to be initiated which might arouse public interest or involve important aspects of legal or prosecutorial authority." He then goes on to cite, as proof of this, a Supreme Court of Appeal judgment "which found that the Minister of Justice and the director-general (DG) have in terms of the Constitution a role to play in terms of section 179(6) which states that ‘the Cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority."
The facts: Minister Radebe sets up a straw man. The Ginwala Inquiry was not provided with evidence that the National Director failed to acknowledge that the minister ‘had a role to play', or ‘was entitled to kept informed'. What they were presented with was evidence of intervention. And the law is unambiguous about this matter - section 32(1)(b) of the National Prosecuting Authority Act states that "no organ of state and no member or employee of an organ of state nor any other person shall improperly interfere with, hinder or obstruct the prosecuting authority"; section 179(4) of the Constitution requires the prosecuting authority to exercise its functions "without fear, favour or prejudice".
Moreover, the very same SCA judgment offered up by Radebe verifies exactly this point. It is worth quoting in full, because it reveals just how badly the minister of justice has either misunderstood or misrepresented the facts:
"[T]he Constitution on the one hand vests the prosecutorial responsibility in the NPA while, on the other, it provides that the Minister must exercise final responsibility over it. These provisions may appear to conflict but, as the Namibian Supreme Court held in relation to comparable provisions in its Constitution, they are not incompatible. It held... that although the Minister may not instruct the NPA to prosecute or to decline to prosecute or to terminate a pending prosecution, the Minister is entitled to be kept informed in respect of all prosecutions initiated or to be initiated which might arouse public interest or involve important aspects of legal or prosecutorial authority."
Statement issued by Natasha Michael, MP, Democratic Alliance deputy shadow minister of justice and constitutional development, December 3 2009
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