IN THE NORTH GAUTENG HIGH COURT, PRETORIA (REPUBLIC OF SOUTH AFRICA)
CASE NO: 59628109
In the matter between:
DEMOCRATIC ALLIANCE APPLICANT
And
THE PRESIDENTR OF THE REPUBLIC
OF SOUTH AFRICA 1ST RESPONDENT
THE MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT 2ND RESPON DENT
THE NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS 3RD RESPONDENT
MENZI SIMELANE 4 RESPONDENT
FILING NOTICE
ON ROLL:
DOCUMENT: FIRST RESPONDENT'S ANSWERING AFFIDAVIT
IN THE NORTH GAUTENG HIGH COURT, PRETORIA (REPUBLIC OF SOUTH AFRICA)
CASE NO: 59628/09
In the matter between:
DEMOCRATIC ALLIANCE Applicant
and
THE PRESIDENT OF THE REPUBLIC
OF SOUTH AFRICA First Respondent
THE MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT Second Respondent
THE NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS Third Respondent
MENZI SIMELANE Fourth Respondent
FIRST RESPONDENT'S ANSWERING AFFIDAVIT
I, the undersigned,
JACOB GEDLEYIHLEKISA ZUMA
do hereby make oath and state:
1.
1.1 I am the President of the Republic of South Africa. I am the First Respondent in this matter;
1.2 The facts to which I depose herein are true and correct. They are within my personal knowledge unless I indicate otherwise or the context indicates so.
1 .3 To the extent that I make submissions of a legal nature, I do so on the advice of my legal representatives. I believe such advice to be correct. In the instances where I rely on information furnished to me by other people I verily believe that such information is true and correct or objectively ascertainable.
2. I have read the application brought by the Democratic Alliance ("DA"). I have also read the affidavit and the supplementary affidavit filed in support of such an application. Before I answer to the allegations made in the supporting affidavit, I am advised to present material background facts and a brief analysis of the applicable legal principles.
3. When I took office of the President of the Republic, the issue of the office of the National Director of Public Prosecutions was under government consideration. The predecessor of the Fourth Respondent ("Adv Pikoli") had challenged his removal from office. The matter was pending before court. The government was opposing the challenge. I appreciated that in the event of the government's opposition succeeding, I would have to make an appointment to that office. I knew that sooner or later, if the government's defence was upheld or the matter disposed of in favour of government, I would have had to make an appointment to that office. As a result I had time to consult and consider the appointment that was to be made.
4. I confirm that on 6 October 2009 I appointed Adv Simelane in terms of si 1(1) of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998) ("the NPA Act"),as a Deputy National Director of Public Prosecutions. On 25 November 2009, I appointed Adv Simelane in terms of sIC of the NPA Act and si 79 of the Constitution of the Republic of South Africa ("the Constitution"), as the National Director of Public Prosecutions.
5. I derived the power to make these appointments from section 179 of the Constitution read with ssl 0 and ssl I of the NPA Act.
6. One of the bases for the attack of my decision to appoint Adv Simelane is that it is an administrative decision. The DA avers that its validity or otherwise should be tested against the provisions of s33 of the Constitution and the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000) ("PAJA").
7. I am advised that the decision to appoint Adv Simelane is not an administrative decision. It was made in terms of s179(1)(a) of the Constitution read together with slO of the NPA Act. Section 179(1)(a) provides that the appointment is made by me "as head of the National Executive". Section 85(1) of the Constitution provides that the executive authority of the Republic vests in me as the President thereof. Section 85(2) provides that I exercise that authority together with other members of the Cabinet. Section 85(2)(e) provides that I exercise such authority by, inter alia, performing any other executive function provided for in the Constitution or in national legislation.
8. I submit that, in law, in appointing Adv Simelane as the national director, I was exercising executive authority vested in me together with other members of Cabinet, especially the Second Respondent, a cabinet member responsible for the administration of justice.
9. The definition of the "administrative action" in section 1 of PAJA excludes the executive power or function of National Executive including the powers or functions referred to in section 85(2)(e) of the Constitution.
10. The decision to appoint Adv Simelane is not an administrative action and does not fall within the purview of PAJA. I was exercising a power vested in me by performing an executive function provided for in s179 of the Constitution and sI 0 of the NPA Act.
11. As stated above, on 6 October 2009 1 appointed Adv Simelane as the
Deputy National Director of Public Prosecutions. Such an appointment
was made in terms of sll(1) of the NPA Act after consultation with the
Minister of Justice and Constitutional Development (the "Minister") and the
Acting National Director of Public Prosecutions.
12. Section 9 of the NPA Act makes provision for the qualifications of the persons to be appointed as the National Director, Deputy National Director or Director of Public Prosecutions. The qualifications are the same in respect of all three positions namely, possession of legal qualifications that would entitled a person to practice in all courts in the Republic, fitness and proprietary, with due regard to his/her experience, conscientiousness and integrity to be entrusted with responsibilities of the office concerned. There is a further requirement of citizenship in respect of the National Director.
13. My decision to appoint Adv Simelane to the position of Deputy National Director was not challenged and remains valid. If Adv Simelane qualifies to be appointed as a Deputy National Director, it is peculiar that the DA alleges he is disqualified to be appointed as a National Director. The Deputy National Director of Public Prosecutions deputizes for the National Director. In the absence of the National Director or if he is unable to perform his/her functions he may appoint the Deputy National Director as acting National Director. In the event of the office of the National Director being vacant or the National Director is for any reason unable to make the appointment contemplated, I may, after consultation with the Minister, appoint any Deputy National Director as acting National Director.
14. The tenure of office of the Deputy National Director is even more secured than the tenure of office of the National Director. The Deputy's tenure is only limited by age, namely 65 years of age. On the other hand the National Director holds office for a non-renewable term of 10 years, and further must vacate his office on attaining the age of 65 years.
15. Section 9 of the NPA Act provides that the person to be appointed as a National Director or a Deputy Director must possess legal qualifications that would entitle him/her to practice in all courts of the Republic and must be a South African citizen. Those two requirements are objectively ascertainable requirements. One need merely to request the person to be appointed to prove that he/she has legal qualifications that would entitle him/her to practice in all courts in the Republic and that he/she is a South African citizen.
16. The third requirement is that the person must be fit and proper, with regard to his/her experience, conscientiousness and integrity to be entrusted with the responsibilities of the office concerned. This is a subjective requirement. Whether a person is fit and proper to be entrusted with the responsibilities of the office concerned is my subjective decision. I am the person, as the President of the Republic, to be satisfied that the person is fit and proper. In so doing I have to take cognizance of his/her experience, conscientiousness and integrity.
17. The Constitution enjoins that the national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice. In the exercise of the powers vested in me, I bore in mind the imperative requirements of the Constitution and our democracy. I took into account that the person to be appointed had to be a person who would be able to exercise his/her function without fear, favour or prejudice. It had to be someone, in my view, who would be able to co-ordinate harmoniously with the National Executive, the Parliament, and other officials and personnel of the NPA. That person, on the other hand, had to have regard to the constitutional functions and obligations of other spheres and branches of government.
18. I have known Adv Simelane for a number of years, as a member of the Competition Commission and as Director General of the Department of Justice and Constitutional Development (the Justice Department").
19. When I considered appointing Adv Simelane as the Deputy National Director of Public Prosecutions, I first consulted the Minister of Justice, the Second Respondent in these proceedings, and the Acting National Director of Public Prosecutions. I must emphasize that although I consulted the Minister and the Acting National Director of Public Prosecutions, I and I alone took the final decision. I also had regard to the curriculum vitae of Adv Simelane. The Minister highlighted the achievements of Adv Simelane as the head of the Competition Commission and the Director General of Justice. I knew of some of those achievements because they were in the public domain.
20. I discussed the issue of the Ginwala Report with the Minister of Justice. The Minister of Justice conveyed to me that Adv Simelane was, in his view, a person of integrity and competence. I understood the Ginwala Enquiry to be a fact-finding exercise established to assist the President to take a decision on whether Adv Pikoli was a fit and proper person to hold the office of National Director of Public Prosecutions. It was not a judicial commission of enquiry into the conduct of Adv Simelane as the Director General of Justice. The testimony of Adv Simelane was required at that enquiry because of the relationship between the NPA and the Justice Department.
21. I considered the Ginwala Enquiry's views on Adv Simelane as a note or precaution to the national executive, the NPA and Parliament to streamline the relationship between all of them. It was not a report intended to have Adv Simelane disqualified for future appointments. The Minister of Justice also expressed his satisfaction that Adv Simelane was fit and proper to be appointed as the Deputy National Director of Public Prosecutions.
22. After taking into account the experience of Adv Simelane as I perceived it, his conscientiousness and integrity and having regard to the discussions with the Minister of Justice, I concluded that Adv Simelane is fit and proper to be entrusted with responsibilities of the office of the Deputy National Director of Public Prosecutions.
23. When the litigation that had been instituted by the former National Director of Public Prosecutions, Adv Pikoli came to an end, I was required to make an appointment in terms of slO of the NPA Act. I again considered the curriculum vitae of Adv Simelane, my personal knowledge and the input I had received from the Minister of Justice. I conferred again with the Minister of Justice as to whether there were other issues that he wished to bring to my attention. I also discussed the issue of the Public Service Commission ("PSC") with the Minister. The Minister confirmed that he had decided not to institute disciplinary proceedings against Adv Simelane.
24. He explained that the PSC had not provided Adv Simelane with the opportunity to inform it of his views on the matters under investigation. In his view, the PSC did not give any weight to the fact that the Ginwala Enquiry was a fact-finding exercise commissioned by the President in terms of s12(6) of the NPA Act and that the individual under scrutiny was not Mr Simelane but Adv Pikoli. Adv Simelane gave the Minister a document expressing his views. The Minister gave it to the PSC with a request that the PSC consider arid reflect on the possibility of taking oral evidence from Adv Simelane, amongst others, in order to properly ventilate the allegations that had been made in the Ginwala Report. The PSC, it appears, declined to adopt this course, and advised that in essence, having reported on their investigation and made recommendations to the Minister of Justice, they considered themselves to have completed their task. The Minister took no further action, be it in the form of a disciplinary enquiry or any other investigation into the conduct of Adv Simelane. It would have been wrong for me, in these circumstances, to draw any adverse inferences against Adv Simelane's standing.
25. The Minister further expressed his views on the interpretation that the Ginwala Enquiry and the courts have given to the terms of s85(2) and s92 read with s179 of the Constitution, with special emphasis on subsections (1), (2), (4), (5) and (6) thereof. His views were the NDPP should have the appropriate skills necessary to fulfil the obligations of that office. The skills would, necessarily, include professional competence and managerial ability. The NDPP should have a clear insight into the important role to be performed by his/her office in our Constitutional and political environment and should have insight into the inter-relationship which necessarily arises from the interaction between his/her office and the other arms of government. The Minister expressed to me that despite the complete independence of the NDPP with regard to decisions to prosecute or terminate a pending prosecution, the Minister is entitled to be kept informed of all relevant decisions taken by the NDPP.
26. I was satisfied with the reasons and views that the Minister gave for his decision.
27. The Minister further assured me that under the leadership of Adv Simelane, he would continue to have a healthy professional relationship with the NPA founded on the provisions of the Constitution and the law.
28. I made a decision that Adv Simelane was fit and proper with due regard to his experience, conscientiousness and integrity to be entrusted with the responsibilities of the office of the National Director of Public Prosecutions. I duly appointed him.
29. In the premises, I submit that the decision to appoint Adv Simelane is lawful and in accordance with the Constitution.
30. In considering the appointment of Adv Simelane as the NDPP, l did not have regard to the transcripts of the Ginwala Enquiry. The DA has annexed the transcript of Adv Simelane's evidence. I have considered those excerpts that the DA makes reference to for purposes of responding to the allegations made by the DA and have not had regard to the entire testimony. I submit that I am not required to go behind the Ginwala Report and interrogate the testimony led in the Enquiry, moreover as my attention is drawn only to parts of the testimony and not all the evidence put before the Enquiry. To do so, I submit, would be to undermine the Enquiry which was appointed by the President to comprehensively consider all facts and evidence and on the basis thereof submit a report on the fitness of the former NDPP to continue to hold office. I am not required, I submit for purposes of my decision to appoint Adv Simelane, to read and reflect on the entire transcript of testimony, its import and inferences.
31. Having considered the relevant excerpts of the transcript I remain of the firm view that the appointment of Adv Simelane is lawful and in accordance with the Constitution and the provisions of the NPA Act.
32. Against this background, I turn to respond to the averments made in the founding affidavit. I note that the deponent makes reference to issues that I have no knowledge of. In the premises I will not address such matters. My answer will be restricted to those issues that are relevant to the decision I had taken. Any allegations made in the affidavits under reply, which are inconsistent with the aforegoing are denied. Any failure on my part to deal with any particular allegation should not be construed as an admission thereof.
AD FOUNDING AFFIDAVIT
33. AD PARAGRAPH I THEREOF:
I note the contents of this paragraph.
34. AD PARAGRAPH 2 THEREOF:
I deny that all the allegations deposed to are true and correct.
35. AD PARAGRAPH 3 THEREOF:
I note the contents of these paragraphs.
36. AD PARAGRAPH 5 THEREOF:
I note the oath taken by the members of the DA. I, however, deny that there is any basis to challenge the lawfulness and constitutionality of appointment of Adv Simelane as the National Director of Public Prosecutions.
37. AD PARAGRAPH 6 THEREOF:
I deny that I purported to, and contend that I appointed Adv Simelane as the NDPP, which appointment is both legal and constitutional. Save for the aforegoing, I admit the contents of this paragraph.
38. AD PARAGRAPH 7 THEREOF:
I admit the identity of the second respondent.
39. AD PARAGRAPHS 8 AND 9 THEREOF:
I admit the contents of these paragraphs.
40. AD PARAGRAPHS 10 AND 11 THEREOF:
40.1 The jurisdictional requirements for the appointment of the NDPP are both objective and subjective. In my view, Adv Simelane meets these requirements. His appointment is thus lawful and there is no merit in the constitutional attack.
40.2 As I have pointed out above, whether a person is fit and proper to be entrusted with the responsibilities of the office concerned is my subjective decision. I, as the President of the Republic, am the person to be satisfied that the person is so fit and proper.
40.3 I deny that my decision to appoint Adv Simelane constitutes an administrative action. In appointing him I was exercising my executive authority. The definition of the administrative action" in si of PAJA does not include the executive power or function of National Executive including the powers or functions referred to in s85(2)(e) of the Constitution. The decision therefore to appoint Adv Simelane is an executive action and does not fall under the am bit of PAJA.
40.4 I deny that my decision was unlawful, irrational, arbitrary, biased, based on an ulterior motive and inconsistent with the Constitution. I pause to point out that the DA has not placed any facts before this court to support these reckless claims.
41. AD PARAGRAPH 12 THEREOF:
41.1 I am aware of the fact that Adv Simelane gave evidence before the Enquiry chaired by Dr Frene Ginwala appointed by the President in terms of s12 of NPA ACT ("the Ginwala Enquiry).
41.2 I do not admit, however, that the evidence of Adv Simelane was incorrect, misleading and untruthful. I am advised by my legal advisor, Ms Bonisiwe Makhene, who has considered the Ginwala Report and the transcripts annexed by the DA that whilst the Enquiry expressed reservations regarding some aspects of Adv Simelane's evidence, it did not characterize his entire evidence as incorrect, misleading and untruthful. The Enquiry's findings were that his evidence was contradictory and without basis in fact or law. This is the view of the members of the Enquiry that heard the evidence. I am not in a position to contradict this view. I annex hereto the confirmatory affidavit of Ms Makhene marked "JGZI". The government accepted the Ginwala Report in its entirety and I do not quarrel therewith.
41.3 I am aware that the then Minister did not give evidence at the Ginwala Enquiry. I wish to point out that the allegations against Adv Pikoli were made by the government as a whole. Adv Simelane was a witness for the government in the Enquiry. ft was not his decision to suspend Adv Pikoli, which suspension formed the basis for the establishment of the Ginwala Enquiry in terms of s12 of the NPA Act. In the premises. I submit that the Ginwala Enquiry was entitled to accept or reject any evidence Adv Simelane gave on behalf of the government.
42. AD PARAGRAPH 14 THEREOF:
42.1 I note that the DA has elected to interrogate the evidence given by Adv Simelane before the Ginwala Enquiry, and on this basis draw conclusions about his evidence which were not made by the Enquiry, nor was it the purpose of the Ginwala Enquiry.
42.2 The Ginwala Enquiry was required, having heard evidence and considered all relevant factors, to submit a report to the President. S12 of the NPA Act provides that based on the report of an Enquiry established in terms of the section, the President may either revoke the NDPP's suspension or recommend to Parliament to remove the NDPP from office.
42.3 The President therefore is required to have regard to the report filed and not to conduct a separate enquiry based on the record of the Enquiry, on the basis which he may arrive at a different conclusion from that of the Enquiry.
42.4 It is apposite to point out that the Ginwala Report has not been challenged by Adv Pikoli, the government or any interested party. It remains unblemished. In the premises it is surprising that the DA does not mount its challenge on the basis of the Ginwala Enquiry findings, but on selected excerpts from the transcript on the basis of which it draws certain conclusions. This undermines the Ginwala Report and elevates the record above the report.
42.5 I have not read the full transcript in the Ginwala Enquiry. I submit that it was not necessary for me to do so, having been briefed on the report of the Enquiry. My attention has however been drawn to the relevant passages of the transcript the DA has quoted in the founding affidavit and I have since considered these. I submit however that I was not required to interrogate the entire transcript before I made the decision to appoint Adv Simelane. I have only had regard to those sections of the transcript as referred to by the DA merely for purposes of responding thereto.
42.6 I submit that what the DA alleges were ‘a series of calculated untruths, transparently designed for political purpose' is not supported by any finding by the Ginwala Enquiry. Neither is it supported by those paragraphs in the transcript the DA has found fit to rely on in this application. The conclusion is a baseless one and not supported by any facts. This I submit cannot be the basis on which my decision to appoint Adv Simelane may validly be challenged.
43. AD PARAGRAPH 15 THEREOF:
43.1 I deny the contents of this paragraph. The DA has not put up any evidence to support the allegations made in this paragraph.
43.2 I am of the view that Adv Simelane is conscientious and a man of integrity and is fit and proper to be appointed as the NDPP. He has served in various government roles diligently, passionately and honestly.
43.3 The DA makes unsubstantiated allegations of a perceived threat to institutional independence and integrity of prosecution services as a result of Adv Simelane's appointment. I submit that these unsubstantiated allegations are intended to create unwarranted panic and hysteria over his appointment.
44. AD PARAGRAPHS 16 AND 17 THEREOF:
44.1 I note the DA's contention that South Africa cannot afford to wait until Adv Simelane ‘either proves his independence or lack of independence'. This suggests, I observe, that the DA does not decisively contend that Adv Simelane is not independent. The fact that he may prove to be independent is an issue, I submit, that the DA tacitly acknowledges. This acknowledgment is inconsistent with the allegation that he has without doubt proven that he is not independent.
44.2 I submit that the allegations made in this paragraph indicate that the DA has a fear, but not a factual basis, that Adv Simelane may not be independent, conscientious and with integrity, however unfounded such a fear may be. I submit that the DA's unfounded fears cannot constitute a ground to overturn my decision.
44.3 I am required to appoint someone who is "fit arid proper" with due regard to his/her "experience, conscientiousness and integrity" and who will fulfil his duties without "fear, favour or prejudice". Any person who does not fit the above criteria may not be considered for appointment. In the premises, whether or not an incumbent will in time prove to be independent, conscientious or a person with integrity is irrelevant. I must be convinced at the time of appointment that he is. Absent any evidence to the contrary I have no basis to conclude that he is not fit and proper. The DA mounts the argument that South Africa can ill afford to give Adv Simelane an opportunity to prove himself because there are no facts presently to show that he is not independent, conscientious or without integrity. There is merely an unfounded fear that he may not be.
45. AD PARAGRAPH 18 THEREOF:
45.1 I admit that the appointment of Adv Simelane is for a non-renewable period of 10 years.
45.2 The appointment was lawfully made and must, in terms of the law. endure for the stated period.
46. AD PARAGRAPH 19 THEREOF:
Save to point out that the prosecutorial independence is in the national interest as a whole and that a compromise thereof does not affect the members of the DA more than the general citizenry, I do not dispute the contents of this paragraph.
47. AD PARAGRAPH 20 THEREOF:
I deny that the integrity of Adv Simelane has been tainted or compromised in any way.
48. AD PARAGRAPHS 22 TO 26 THEREOF:
I do not take issue with the contents of these paragraphs.
49. AD PARAGRAPHS 27 TO 31 THEREOF:
I do not dispute the contents of these paragraphs.
50. AD PARAGRAPH 32 THEREOF:
Whilst I do not dispute that the requirements of ‘fit and proper' are not restricted to those for consideration in the admission of an advocate or attorney, I point out that the factors pointing to the fitness and propriety of an appointee are specific to the office he is intended to hold, namely, the office of the NDPP.
51. AD PARAGRAPHS 33 TO 35 THEREOF:
51.1 The assessment by a court as to whether a person is ‘fit and proper' must endure throughout including up to his/her appointment. If on appointment to office a court has not found it fit to strike him off the roll as not satisfying the requirement of ‘fit and proper' it must be accepted, I submit, that he continues to enjoy such status.
51.2 In the premises, I deny that the assessment by a court is not directly relevant. It would be incongruous for a candidate to be considered ‘fit and proper' for appointment as an NDPP and not ‘fit and proper' by a court. The assessment of the court therefore is directly relevant to the appointment of the NDPP.
52. AD PARAGRAPH 36 THEREOF:
52.1 The NPA Act requires the NDPP to fulfil his duties without "fear, favour or prejudices. A number of guarantees are implicit in this requirement, including upholding the prosecutorial independence of the NPA.
52.2 Impartiality flows from the requirement that duty be exercised without favour or prejudice.
52.3 The requirement that one be fit and proper with regard to "experience, conscientiousness and integrity" is a separate and distinct requirement to executing duties without "fear, favour or prejudice". The DA, erroneously I submit, conflates the two requirements. As an example, no amount of experience will guarantee an exercise of duty without fear, favour or prejudice. This therefore cannot be the only relevant consideration as to whether an incumbent will comply with the duty of office.
53. AD PARAGRAPH 37 THEREOF:
Section 9 of the NPA Act sets out the requisites for appointment to the office of NDPP. Section 1 79(4) of the Constitution imposes the duty on a person appointed to exercise his functions without "fear, favour or prejudice"
54. AD PARAGRAPH 38 THEREOF:
54.1 I deny the contents of this paragraph.
54.2 Section 9 specifically sets out the requirements for appointment to the office of the NDPP.
54.3 What is relevant to consider, I submit, is whether the candidate:
54.3.1 has the relevant experience;
54.3.2 is conscientious;
54.3.3 is a man/woman of integrity and
54.3.4 is capable of retaining the independence and impartiality of the NPA with regard to decisions to
prosecute or terminate a pending prosecution.
54.4 A candidate who satisfies these requirements is worthy of consideration for the appointment as NDPP.
54.5 I am of the firm view that Adv Simelane satisfies all these requirements. The DA has not set out any basis to contend that Adv Simelane does not meet any or all of these requirements.
55 AD PARAGRAPHS 39 TO 41 THEREOF:
55.1 It is curious that the DA places reliance on the transcript to the total exclusion of the Ginwala report.
55.2 I note the comments allegedly made by Archbishop Desmond Tutu. I point out however that the basis on which the comment is premised is not provided. In the premises I cannot agree with the sentiments expressed. In addition thereto, in the absence of the media statement and confirmatory affidavit the allegations made of an inadmissible hearsay nature.
56 AD PARAGRAPHS 43 AND 44 THEREOF:
56.1 Section 36 The Public Finance Management Act, 1999 (Act No.1 of 1999) provides that the Director-General of the Department of Justice and Constitutional Development is the accounting officer for the Department.
56.2 Section 36(3) of the NPA Act provides that:
Subject to subsection (3A), the Director-General: Justice shall, subject to the Public Finance Management Act (Act I of 1999)
(a) be charged with the responsibility of accounting State monies received or paid for or on account of the prosecuting authority; and
(b) cause for the necessary accounting and other related records to be kept.
56.3 Section 36(3)(A)(b) of the NPA Act provides that:
(a) The Minister must appoint a fit and proper person as the Chief Executive offices of the Directorate of Special Operations.
(b) "The Chief Executive Officer is the accounting officer of the Directorate of Special Operations and shall, subject to the Public Finance Management Act, 1999 (Act I of 1999) -
(I) account for money received or paid out for or on behalf of the administration and functioning of the Directorate of Special Operations; and
(ii) cause the necessary accounting and other related records to be kept."
56.4 The law therefore is quite clear that the DG: Justice is the accounting officer for the prosecuting authority, excluding the now defunct Directorate of Special Operations.
56.5 The Ginwala Enquiry accepted, this is as the correct legal position, that the DG of Justice has certain accounting responsibilities in respect of the NPA.
56.6 The current legislative framework therefore does not contemplate the NDPP reporting and accounting to Parliament. In terms of s35 of the NPA Act, the Minister tables an annual report prepared by the NDPP to Parliament on the powers, functions and duties under the NPA Act, including decisions regarding the institution of prosecutions. The accounting officer of the NPA, the DG of Justice, accounts to Parliament, in terms of s36 of the NPA Act for State monies received or paid for or on account of the prosecuting authority.
56.7 I submit therefore that any view held by either Adv Pikoli or Adv Simelane that is inconsistent with the provisions of the PFMA and the NPA Act is not only erroneous but also irrelevant.
57 AD PARAGRAPHS 45 TO 47 THEREOF:
57.1 I note what Adv Simelane drafted in the government's submissions.
57.2 To the extent that what is stated is inconsistent with the legal framework, such is incorrect.
57.3 I submit that the legislative framework does not offend the constitutional guarantee of the independence. If it is so, any such provision would be subject to a constitutional challenge, I confirm that neither the PFMA nor the NPA Act have been challenged as offending the NDPP's constitutional guarantee of independence.
58 AD PARAGRAPHS 48 TO 50 THEREOF:
58.1 I note the contents of these paragraphs.
58.2 I have read the relevant part of the transcript and my view is that Adv Simelane and Adv Trengove SC were debating whether there's a direct Constitutional provision that guarantees the independence of the NPA. This seemed to centre on the wording of section 179(4).
58.3 Further on in the transcript it is apparent that Adv Simelane is in agreement with the finding of the Constitutional Court in the First Certification judgment.
59 AD PARAGRAPHS 51 and 54 THEREOF:
59.1 I deny that the relevant passages relied upon (p 311 line ito 23) indicate that Adv Simelane believes that the findings of the Constitutional Court are less important or less binding on him as a public servant.
59.2 I cannot find anything in these paragraphs that supports such a conclusion. Neither can I find any basis for the conclusion that Adv Simelane was of the view that it was open to him to act contrary to the Constitutional Court's "interpretation.
60 AD PARAGRAPHS 55 TO 56 THEREOF:
60.1 1 submit that the relevant sections of the NPA and PFMA are clear in regard to the exercise of the duties of an accounting officer.
60.2 S36(2) of the NPA Act stipulates that the Department of Justice must, in consultation with the National Director, prepare the necessary estimate of revenue and expenditure of the prosecuting authority. S39 of the PFMA on the other hand imposes an obligation on the accounting officer to ensure that the expenditure of the department is in accordance with the vote of the department and the main divisions within the vote. Furthermore, the accounting officer must ensure that steps are taken to prevent unauthorized expenditure.
60.3 1 interpret the aforegoing to mean that the estimate of revenue and expenditure of the prosecuting authority, once accepted by Parliament and constituting a budgetary vote must be expanded in accordance with such vote. In this context I am of the opinion that the DG: Justice is accountable to Parliament on the manner in which the NPA's budgetary allocation is spent, that is, it must be spent in accordance with the vote.
61 AD PARAGRAPH 57 THEREOF:
Save to point out that Adv Simelane based the expressed view on the provisions of the PFMA, I do not deny the contents of this paragraph.
62 AD PARAGRAPH 58 THEREOF:
62.1 I expect Adv Simelane to uphold the provisions of the NPA Act and the PFMA and in particular ensure that proper accounting takes place. He is expected to maintain the independence and impartiality of the NPA in so far as the decisions to prosecute or terminate pending prosecutions. Insofar as the financial accounting is concerned he is required to account to the accounting officer.
62.2 Any conduct on his part that is inconsistent with the prescripts of the law as set out in the two Acts under discussion would be clearly unlawful.
62.3 In exercising financial control over the NPA, Adv Simelane must do so within the confines of the law. If he is of the view that the prescripts of the law are unconstitutional or compromise the institutional independence of his office he is, I submit, under duty to bring this to the attention of the Minister who must ensure that the legislation is consistent with the Constitution.
63 AD PARAGRAPHS 59 AND 60 THEREOF:
Save to deny that the relevant section relied upon by DA makes reference to ‘decision-making powers (as to spending priorities and staffing issues)' I do not dispute the contents of this paragraph.
64 AD PARAGRAPHS 61 AND 62 THEREOF:
Save to assert that monies appropriated to any institution, including the NPA, must be spent in accordance with the budget vote as prescribed by section 39 of the PFMA, I note the contents of these paragraphs.
65 AD PARAGRAPH 63 THEREOF:
65.1 I have not had the benefit of sight of the legal opinion referred to in this paragraph. I am not aware of the basis on which it was sought and the specific issues that were sought to be addressed. I submit that I am not required to have consideration to such opinion in making a decision as to whether to appoint Adv Simelane as the
NDPP.
65.2 In the premises, I note what the opinion stated and make no comment.
66 AD PARAGRAPHS 64 TO 67 THEREOF:
66.1 I note that the opinions referred to were sought. I reiterate that I have not had sight of any of these opinions; neither are they relevant to the decision I was in law required to make regarding the appointment of the NDPP.
66.2 The role of the DG: Justice as the accounting officer of the NPA is clearly set out in section 36 of the NPA Act.
66.3 The PFMA reinforced the concept of ‘accounting officer'. S36 thereof provides that the head of department is the accounting officer for a department and the chief executive officer of a constitutional institution is the accounting officer of that institution. The accounting officer has certain accounting responsibilities listed in sections 38 and 39 of the PFMA. Section 36(3) of the NPA Act in turn provides that the DG: Justice is the accounting officer subject to the PFMA. I do not understand therefore the contention that s36(3) of the NPA Act ‘does not say that the DG is the accounting officer for purposes of the PFMA' Unfortunately it is not clear whether the DA is of the view that in exercising his duties as the accounting officer of the NPA the DG: Justice is not bound by the prescripts of the PFMA. I will not seek to speculate. I however wish to point out that to the extent that this is the DAs view, such a view is wrong in law.
67 AD PARAGRAPHS 67 AND 68 THEREOF:
67.1 I submit that the selective selection of quotes from the transcript by the DA is completely unhelpful. When one has regard to the context in which the quoted words were uttered, the issue at hand was whether the DG: Justice is the accounting officer of the NPA and the basis thereof. It is clear from the exchange that Adv Simelane was of the view that the NPA is not listed as a Constitutional institution, not as a stand alone, but a part of the department. This exchange led to the discussion around the delegation of authority to the CEO of the NPA. The Ginwala Enquiry accepted that the DG:
Justice exercises certain accounting responsibilities in respect of the NPA.
67.2 Si 79(6) of the Constitution provides that "The Cabinet member responsible for the administration of Justice must exercise final responsibility over the prosecuting authority".
67.3 In terms of s36(1) of the NPA Act, the expenses incurred by the NPA are defrayed out of monies appropriated by Parliament for that purpose. The budget of the NPA is presented by the Second Respondent as the responsible Minister to Parliament.
67.4 The Ginwala Enquiry accepted that in considering the independence of the NPA "The challenge is to reconcile the prosecutor/al independence with the constitutional provision that a Cabinet Minister must ‘exercise final responsibility over the prosecuting authority". In order to arrive at an understanding of what this would involve in practice, / start from the premise that the Constitution locates the prosecuting authority as part of the executive. It does not have the distinct status accorded to the judiciary or that provided to the chapter 9 States institutions Supporting Constitutional Democracy. One cannot be independent of an arm of government of which one is a part under whose political authority one falls. The independence of the prosecuting authority is limited to the execution of its functions, importantly, of deciding whether to prosecute or not to prosecute a particular offender"
67.5 To the extent therefore that the statements of Adv Simelane as quoted n the paragraphs under reply are consistent with the correct view expressed by the Ginwala Enquiry as regards whether the prosecuting authority is part of the Department of Justice, I agree with them.
68 AD PARAGRAPHS 69.1 AND 69.2 THEREOF:
68.1 I reiterate the legal position I have set out above as to the legal manner in which budgets are presented before and approved by Parliament. This legislative scheme must be complied with at all times.
68.2 I have been made aware of the fact that Adv Simelane drafted the letter of 18 September 2007. Without considering the circumstances under which the then Minister signed the letter, I wish to point out that the Minister was under duty to ensure that communication under her hand must be in compliance with the law.
68.3 I accept the findings of the Ginwala Enquiry regarding the then Minister's explanation regarding what meaning she intended to convey in the letter under reference. I also take note of the Ginwala Enquiry that "It is clear that in the circumstances of the impending prosecution of a state official as senior as the National Commissioner of Police, Adv Pikoli was obliged to inform the Minister to exercise her final responsibility, namely to report to the President and to Cabinet on such matters especially if they may affect national security. This duty would specifically include informing the Minister of the DSO's intention to apply for warrants of arrest and search and seizure against the National Commissioner of Police."
68.4 I note the views of Adv Simelane that "when an institution acting on behalf of the state takes decisions of the type proposed, acting on behalf of the state as the political head responsible and accountable to the public, she also needs to be satisfied that such action taken on behalf of the state is indeed in the public interest".
69 AD PARAGRAPHS 69.3 TO 69.7 THEREOF:
69.1 I am not in a position to comment on what Adv Simelane believed.
69.2 I have, however, had regard to the portions of the transcript referred to in these paragraphs and submit that they do not support the conclusions drawn by the DA as to what Adv Simelane believed or not.
70 AD PARAGRAPHS 70 TO 75 THEREOF:
I refer to what I have stated above regarding the Minister's explanation as to the meaning of the statement under reference. I also reiterate the Minister's responsibility for communication issued under her hand.
71 AD PARAGRAPH 76 THEREOF:
71.1 I have had regard to those parts of the transcript that the DA alleges indicate that Adv Simelane neither understands nor respects the independence of the NPA.
71.2 When regard is had to the context in which these statements were made, I deny that they point to Adv Simelane's understanding and respect for the independence of the NPA. On the contrary, Adv Simelane has recognized the prosecutorial independence of the
NPA.
72 AD PARAGRAPHS 77 TO 83 THEREOF:
72.1 I have read the relevant portions of the transcript on which these allegations are premised, as well as Adv Simelane's explanations as to which the letters under reference were not initially disclosed to the Enquiry.
72.2 I note that the Enquiry did not make any adverse finding in this regard. I have no basis to second-guess the Enquiry, which had the benefit of hearing all the evidence, in this regard. Whilst these letters appear to have become relevant to the Enquiry, I submit they do not necessarily point to dishonesty on the part of Adv Simelane.
73 AD PARAGRAPHS 84 TO 107 THEREOF:
73.1 I note that the DA makes extensive reference to excerpts from the transcript, It is curious however that the DA has total disregard of the relevance or weight attached by the Enquiry to these issues. I submit that this is an attempt to conduct a new Enquiry' before this Honourable Court based only on the evidence of Adv Simelane. This the DA does without challenging the findings of the Ginwala Enquiry. This I submit undermines a legislated Presidential Enquiry.
73.2 As regards the opinions, the Ginwala Enquiry held that by refusing not to disclose the opinions to the enquiry his conduct "could have misled the enquiry". The Enquiry did not however conclude that it was so misled. The Ginwala Report indicates that the opinions were to be disclosed to Adv Pikoli on the basis that they were privileged. The Enquiry did not conclude that Adv Simelane was under duty to disclose these opinions. The Enquiry only lamented the fact that Adv Simelane had failed to heed the legal advice he sought and obtained from senior counsel.
73.3 I reiterate that faced with selective excerpts of the opinions, I am not in a position to engage the DA as to the contents thereof. I refer to what I have stated above in regard to the accountability for State monies received or paid for or on account of the prosecuting authority.
74 AD PARAGRAPHS 108 TO 114 THEREOF:
74.1 I wish to point out that the DA again relies on selective quotations of cross-examination of Adv Simelane without reference to the Ginwala Report as regards the matters raised in these paragraphs and the weight to be attached thereto, in particular, as Adv Simelane was not the focus of the Enquiry.
74.2 I submit that the fact that the Enquiry did not to arrive at the conclusions drawn by the DA must be considered in the context of all the evidence placed before the Enquiry. The Enquiry rejected some, but not all of the allegations he had made against Adv Pikoli. This, I submit, was the function of the Enquiry, to weigh all the evidence received and reject or accept evidence proffered in support of the allegations made.
75 AD PARAGRAPHS 115 TO 119 THEREOF:
75.1 The contents of these paragraphs point a dispute of fact as to what had actually transpired in the meeting between Adv Mpshe and Adv Simelane.
75.2 I am advised that Adv Mpshe did not give evidence at the Enquiry and the Enquiry therefore did not have the benefit of his oral testimony.
75.3 The contents of these paragraphs are therefore unhelpful as they do not establish any fact.
76 AD PARAGRAPH 120 THEREOF:
76.1 I submit that the conclusion that Adv Simelane assisted in the drafting of the letter of suspension constitutes conjecture on the part of the DA. Rev Chikane, at the relevant page of the transcript referred to, certainly did not state that Adv Simelane rendered such assistance. The DA points out that Adv Simelane denied having given such assistance. There is no evidence to contradict him.
76.2 The issues raised in this paragraph point, in my view, to disputes of fact. Some of the witnesses referred to did not give oral evidence. I fail therefore to see the relevance of these disputes of fact as they have not been decided by the Enquiry.
76.3 I am aware that the Ginwala Enquiry rejected Adv Simelane's evidence in respect of the Malawian investigation.
77 AD PARAGRAPHS 112 TO 125 THEREOF:
77.1 I admit that the Ginwala Enquiry held that Adv Simelane's conduct left much to be desired. I point out however that the Enquiry was specific as regards the testimony it rejected. It does not mean that the testimony of Adv Simelane was rejected in toto.
77.2 I must point out that Adv Simelane was merely a witness and his testimony was open to acceptance or rejection by the Enquiry. Nowhere in the report does the Enquiry find that he acted maliciously or with intent to mislead the Enquiry.
77.3 The excepts relied upon by the DA at paragraphs 123.3, 123.5 and 123.6 all relate to Adv Simelane's failure to disclose the opinions he had received from independent counsel.
77.4 I wish to point out the following:
77.4.1 At paragraph 14 of the Report, the Enquiry noted that it was probable that the Minister's relationship with Adv Pikoli was precipitated by Adv Simelane's misconception of his authority over the NPA which influenced his reports to the Minister.
77.4.2 The Enquiry noted, at paragraph 86, that the difference of opinion over the status of the NPA and its relationship with the Department were primarily with the DG: Justice, Adv Simelane which gave rise to constant conflicts with Adv Pikoli. Further, that these conflicts would have given rise to the Minister's misplaced concerns that Adv Pikoli considered himself not accountable to the Minister;
77.4.3 At paragraph 156, the Report states that "it is probable that many of the difficulties between Adv Pikoli and the Minister relating to how each was to discharge their responsibilities were based on the DG: Justice's incorrect understanding of his accounting responsibilities vis-â-.vis those of the NDPP". The Enquiry then surmised that these conflicts were referred to in the DG: Justice's reports to the Minister, and to some extent must have given rise to the Minister's misplaced concerns that Adv Pikoli considered himself not to be accountable to the Minister. It is important to note that this view is a summation on the part of the Enquiry, and not more.
77.4.4 I must state that the Enquiry consistently points to Adv Simelane's incorrect understanding of his accounting responsibilities as DG: Justice. There is no suggestion that Adv Simelane sought to deliberately mislead the Minister or deliberately provided her with inaccurate information knowing it to be so. Neither did the Enquiry find that he was clarified as to the roles of the DG: Justice and the NDPP and deliberately elected to act contrary to his understanding.
77.5 I submit that none of the issues stated in the paragraphs under reply point towards dishonesty or a deliberate intention on the part of Adv Simelane to mislead the Minister. Neither does it point to a deliberate attempt to undermine the NDPP's prosecutorial independence. The Enquiry found Adv Simelane's drafting to have been reckless.
77.6 I took into consideration the findings of the Ginwala Enquiry, including the comments and/findings made against Adv Simelane.
I submit that in view of, at times the speculative nature of the Enquiry's findings in this regards, and the absence of a finding of malice or dishonesty by the Enquiry, I considered the report in the light of the knowledge I have of Adv Simelane as regards his experience as an advocate, his conscientiousness and integrity and found that these findings did not detract from his suitability for appointment.
78 AD PARAGRAPHS 126 TO 130 THEREOF:
78.1 I enquired from the Second Respondent as to whether there were any factors in his view that rendered Adv Simelane not suitable for appointment. He advised me of his reservation of the procedure followed by the PSC. I am satisfied with his decision in that regard.
78.2 It bears mentioning that the applicant concedes that it is not reviewing the Minister's decision not to take disciplinary action against Adv Simelane. This report is dated April 2009 and the appointment of Adv Simelane was made on 25 November 2009.
78.3 I must also point out that Adv Simelane had been appointed the Deputy Director of Public Prosecutions on 6 October 2009. The requirements for the appointment of both the Deputy and the NDPP are the same. The appointment as Deputy was never challenged by the DA on the basis that the report of the PSC had been ignored.
79 ADPARAGRAPHSI3I TOI34THEREOF:
79.1 I deny that the findings of the Ginwala Enquiry were ignored in the consideration of Adv Simelane's appointment.
79.2 The PSC report recommended to the Minister to "consider taking disciplinary action against Adv Simelane in terms of the Disciplinary Code and Procedure for members of the SMS'. This recommendation was however rejected by the Minister for the reasons set out in his written decision of 23 November 2009. The DA's position, as stated in paragraph 131, is that such decision to appoint Adv Simelane as Deputy is not under review.
79.3 Notwithstanding the DA's appreciation that "natural justice may require that, in the employment context, there should be a full hearing before disciplinary action is taken against Mr. Simelane on the basis of misconduct" the DA suggests that this principle be ignored in the face of the Ginwala Enquiry and the PSC Report. It is apposite to point out that the Ginwala Enquiry did not make any recommendations that disciplinary action against Adv Simelane be considered. The PSC Report was dealt with by the Minister.
79.4 The DA does not provide evidence to substantiate the allegation that Adv Simelane is tainted in the public mind. Consequently I reject this assertion.
80 AD PARAGRAPHS 135 TO 139 THEREOF:
80.1 I refer to what I have stated above in regard to the letter of 18 September 2007 and the opinions sought and obtained by Adv Simelane referred to in the Ginwala Enquiry.
80.2 I admit that the current Minister was not present at the Ginwala Enquiry and did not see Adv Simelane testify nor hear oral argument. I submit that the same applies to the deponent to the DA's founding affidavit who was equally not present at the Ginwala Enquiry and did not observe Adv Simelane testify nor hear oral argument. This points to the fallacy in relying on a transcript and ignore the findings of the Enquiry which had the benefit of seeing all the witnesses and hearing full oral argument as the DA has sought to do in the founding affidavit.
80.3 I deny that there is a strong prima fade evidence of unsuitability of Adv Simelane to be appointed the NDPP. There is nothing in the Ginwala Report to support this contention. As regards the PSC recommendation, in light of the faifing to afford Adv Simelane a hearing, its value on this issue is undermined. I accepted the approach adopted by the Minister.
81 AD PARAGRAPHS 140 TO 144 THEREOF:
I was informed by the Minister that the PSC did not consider the submissions made by Adv Simelane. The Minister arrived at a conclusion that the matter would be taken no further. As stated above, I accepted the Minister's decision.
82 AD PARAGRAPHS 145 TO 147 THEREOF:
82.1 I note that the GCB has launched a probe into Adv Simelane's fitness as an advocate.
82.2 I, however, deny that it was inappropriate for me to appoint Adv Simelane in the circumstances. I am not aware of the basis on which this probe has been launched and what the potential outcome thereof will be.
82.3 I point out that based on the wording of the NPA Act, if Adv Simelane, for any
reason, ceases to be recognized as an advocate by the High Court, I would have to apply my mind to any order made by the court and give effect to it.
83 AD PARAGRAPHS 148 TO 150 THEREOF:
83.1 The test of whether the decision to appoint Adv Simelane is valid or otherwise is partly objective, namely the qualifications and partly subjective, namely that aspect dealing with "fit and proper".
83.2 The decision is not an administrative decision. Consequently, the provisions of PAJA do not apply.
83.3 I acted legally, in good faith and have not misconstrued the powers granted to me.
83.4 I believe that my decision is rationally related to the purpose for which the powers were granted to me.
84 AD PARAGRAPHS 151 TO 158 THEREOF:
I accept that matters of this nature should be determined as soon as is practically possible.
AD SUPPLEMENTARY AFFIDAVIT
85 AD PARAGRAPHS I TO 6 THEREOF:
Save to deny that all the allegations made in the supplementary affidavit are true and correct; the allegations made in these paragraphs are admitted.
86 AD PARAGRAPH 7 THEREOF:
I have made it clear that I did not rely exclusively on Adv Simelane's curriculum vitae in deciding to appoint him. In addition to his curriculum vitae, I had personal knowledge of him and I received information from the Minister. I based my decision on the totality of the information, written and oral, that I had received.
87 AD PARAGRAPH 8 THEREOF:
The interpretation placed by the DA on the meaning of the legal requirements for the appointment of the NDPP is not entirely accurate. Save for the inaccuracy, the remainder of the allegations made in this paragraph are admitted.
88 AD PARAGRAPHS 9 TO 21 THEREOF:
88.1 The DA misreads and misunderstands (deliberately I suspect) the report of the Ginwala Enquiry. The report is confined to whether the government had proved the grounds for suspension. It expressly stated that had some of the evidence regarding the conduct of Adv Pikoli, that had been led, been presented as grounds for suspension it "would not have hesitated to find the reason to be legitimate."
88.2 Adv Pikoli withdrew the application challenging his removal from office. It is spurious to argue that the allegations made have not been withdrawn. The fact of the matter is that he did not proceed with those allegations. They remain what they are, untested allegations which were refuted by government.
88.3 I fully considered the eligibility of Adv Simelane for appointment as NDPP. I was satisfied that there was nothing that disqualified Adv Simelane from the appointment as NDPP. I had gathered sufficient information to decide on this issue.
88.4 I have been made to understand that rule 53 of the rules of Court requires that I make available documents that were before me when I made the decision. I was not required to make available oral information as well. In any event, I indicated that I received some further oral information from the Minister.
88.5 I exercised the powers vested in me by the Constitution and the NPA Act in appointing Adv Simelane for the purpose for which they were conferred upon me.I considered all relevant factors, and concluded that Adv Simelane was indeed fit and proper to be so appointed. I totally reject the suggestion by the DA that I appointed Adv Simelane to fulfil a plan of the ANC leadership "to have an NDPP of their own choosing who would be more malleable than Mr Pikoli".
89 AD PARAGRAPHS 22 TO 30 THEREOF:
I reiterate that I fully considered all the facts that were at my disposal. I consulted the relevant Minister. I did not prejudge the eligibility of Adv Simelane for the appointment to the office of the NDPP. Even if I had the information that the DA seeks to rely on, I would still have reached the same decisions, It is clear that the DA's case is based on suspicion and mistrust. The fact that I appointed a person that they would not have appointed does not render my decision invalid. Any allegations made in these paragraphs which are inconsistent with contents of this affidavit are denied.
90 AD PARAGRAPHS 31 TO 38 THEREOF:
As stated above Adv Pikoli withdrew the application challenging his removal. That application is irrelevant to the present application. The papers filed therein are inadmissible to this application. I have also pointed out that the Report of the Ginwala Enquiry is misunderstood. Any allegations made in these paragraphs which are inconsistent with contents of this affidavit are denied.
91 AD PARAGRAPHS 39 AND 40 THEREOF:
The allegations made in these paragraphs are noted.
92. I submit that the DA has failed to make out a case for the relief it seeks. The appointment of Adv Simelane was both proper and lawful.
WHEREFORE I pray that this application be dismissed with costs.
DEPONENT
MAY 18 2010
Source: www.damediacentre.co.za. Electronically transcribed from PDF: As such there may be small errors in the text.
Click here to sign up to receive our free daily headline email newsletter
