SIMELANE FIT TO HOLD OFFICE

The Presidency last week announced that President Jacob Zuma has taken a decision to appoint Advocate Menzi Simelane as the new National Director of Public Prosecutions. Simelane's appointment is effective as from tomorrow, 01 December 2009.

Adv Simelane has a BProc and LLB degrees from the University of KwaZulu-Natal. He served pupilage at the Durban Bar. He is a member of the Johannesburg Bar where he practiced. He previously served on the Board of South African Tourism and the Gauteng Tourism Agency. In addition he served as the Commissioner of the Competition Commission from 1999 to 2005. He became the Director-General of the Department of Justice and Constitutional Development in June 2005 until he was appointed as the Deputy National Director of Public Prosecution at the National Prosecuting Authority (NPA) in October 2009.

The candidature and/or fitness of Adv Simelane to hold office as the National Director of Public Prosecutions (NDPP) has been called into question by some in the media and certain commentators. This is against the backdrop of a report by the Ginwala Enquiry and an investigation which was subsequently conducted by the Public Service Commission (PSC) into Simelane's conduct during the Ginwala Enquiry. This is a matter I now wish to deal with.

The Ginwala Enquiry report was referred by the former Justice Minister Enver Surty to the PSC to investigate Simelane's conduct based on the recommendations contained in that Enquiry report.

Once its investigations were concluded, the PSC brought a report which was made available to me and having studied that report, I discovered that the PSC did not provide Adv Simelane with the opportunity to explain or to respond to the allegations made against him by the Ginwala Enquiry. I am in possession of a response prepared by Simelane which I submitted to the PSC with a request to consider the response and to consider hearing oral representations from Simelane in order to canvass with him the allegations against him.

The PSC did not amend their earlier report, failing to entertain the response by Simelane. This resulted in the PSC sticking to their original recommendations. My request was ignored by the PSC and the PSC did not create the opportunity for Simelane to comply with his obligation to cooperate with the PSC as provided for in items C.1.5 and C.4.11 of the PSC's code of conduct. My view is this amounts to a fatal flaw in the approach employed by the PSC which means that I could not rely on their report in order to consider the issue whether or not disciplinary action should be taken against Adv Simelane.2

The PSC's failure to apply the audi alteram partem rule

The PSC decided that it was not necessary to interview any persons as part of its investigation as Ginwala had already conducted a full enquiry. The fact of the matter is that Ginwala did not conduct an enquiry and for that matter, a full enquiry into the activities of Adv Simelane. The terms of reference of the Ginwala Enquiry mandated her to conduct an enquiry into the conduct of Adv Vusi Pikoli. The PSC assessed the conduct of Simelane against the Ginwala Report and no opportunity was created for Simelane to make a contribution before a decision was made by the PSC to recommend that a disciplinary enquiry should be conducted against Simelane.

This completely violates Advocate Simelane's fundamental rights to the principle that any person who is to be affected by a finding must be given the opportunity to defend himself, as dictated by the audi alteram partem rule. This failure of the PSC notwithstanding a request by me to create the opportunity for Simelane to state his case, is actually a flagrant abuse of his fundamental rights, especially after Advocate Simelane offered to make himself available to cooperate with the PSC. This in itself was regarded by me as a sufficient basis to reject the findings of the PSC.

I will now deal with each one of the PSC's findings and recommendations and my response thereto:

1. The failure to disclose the former MJCD's letter, dated 18 September 2007, addressed to Advocate Pikoli, instructing him not to proceed with the arrest and prosecution of the National Commissioner of the SAPS and Advocate Pikoli's response to the letter.

The rules of the Ginwala enquiry provided that the chairperson was authorised to call for oral evidence. Ginwala also stated in her report that: "I also did not find myself bound to apply the rules of evidence integral to a judicial process". The Ginwala Enquiry was a fact finding enquiry and it concluded that it was only going to call for oral evidence on matters in dispute. The letter addressed to Pikoli and his response thereto was not in dispute.

The Ginwala Enquiry was not a judicial commission and therefore the rules pertaining to a judicial commission did not apply to the Enquiry. Furthermore, she was not required to draw legal conclusions.

The letter dated 18 September 2007 was signed by the former Minister, Minister Mabandla and it was part of the submission by the former Minister to the Ginwala Enquiry and was attached as annexure "VP 12".

The attack on the credibility of Advocate Simelane by the Ginwala Enquiry because he had allegedly not disclosed this letter to the Enquiry and therefore made a misrepresentation to the Ginwala Enquiry is without any foundation as the Ginwala Enquiry was already in possession of the letter before Advocate Simelane had given evidence. The Ginwala Enquiry was therefore not misled by the evidence of Advocate Simelane. Advocate Simelane did therefore not fail in a duty to disclose the existence of the letter. The letter was similarly attached to the Pikoli submission which was received by the Ginwala Enquiry before Advocate Simelane gave evidence. 3

The Ginwala Enquiry should have called Minister Mabandla if they had any queries regarding the letter but failed to call her as a witness.

2. Failure to disclose legal advice obtained on the interpretation of and the application of the powers derived from the Public Finance Management Act (PFMA) and the role of the Accounting Officer vis-à-vis the PFMA and alleged misrepresentation to the Ginwala Enquiry.

During Simelane's evidence, he initially denied that he had acquired a legal opinion regarding the Pikoli issue. He later corrected himself that the legal opinion covered this issue in addition to a variety of other issues. This is a common human experience in a court of law that a witness would correct him or herself. Such a correction does not necessarily justify a conclusion that a witness was lying when he corrected himself. For the same reason Simelane was not guilty of contravening item C.1.5 or item C.4.11 of the PSC Code of Conduct.

Ginwala's findings that Simelane had no role to play as far as the National Prosecuting Authority (NPA) is concerned, is not correct in law and against the background of the judgement of Supreme Court of Appeal (SCA) judge, Harms. Harms 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".

Advocate Simelane was the accounting officer at the time. However the Ginwala Enquiry found that by reason of the delegation to the CEO of the NPA that therefore Advocate Simelane had no right to call on the CEO of the NPA to account to him. This finding was in fact not correct as the NPA Act 32 of 1998 provides in section 36(3) that the Director-General of Justice is charged with the responsibility of accounting for State monies on account of the prosecuting authority. The Ginwala Enquiry's finding in this regard is therefore in conflict with section 36(3). However the DSO is not accountable to the Director-General of Justice regarding the Confidential Fund.

Adv Simelane contended that he had to conclude a Performance Agreement with the former Chief Executive Officer (CEO) of the NPA, emanating from his (Simelane's) role as Accounting Officer of the NPA.

The Justice DG is in fact the accounting officer for the financial affairs of the NPA and he is obliged to report to Parliament about the finances and accounting material of the NPA and is responsible for good governance also as far as the NPA's financial affairs are concerned. Simelane was therefore fully entitled to conclude the Performance Agreement with the NPA CEO.

Notwithstanding the delegation to the CEO, Simelane remained accountable for the affairs of the NPA to Parliament. The PSC took the view that the position taken by Simelane regarding the Confidential Fund and the chambers for the NPA prosecutors do not amount to misconduct.

The criticism against Advocate Simelane in claiming that the NPA is accountable to him was therefore unfounded and not a reason to dismiss his evidence.4

3. Statements made by Advocate Simelane in his evidence which were allegedly without foundation and which he had to retract during cross examination.

I have (just) dealt with this matter in my response to the second PSC's finding.

4. Whether or not any alleged conduct of Advocate Simelane, as referred to in the Ginwala report, amounts to a breach of any act, regulations, code of conduct or any other prescript, that are applicable in respect of his duties as the Director-General.

The former Minister believed that in terms of section 33 of the NPA Act, Pikoli was obliged to furnish information about decisions taken by him and that she was therefore entitled to demand such reasons from the NDPP. The Minister disclosed that she had addressed a letter to Pikoli seeking such full particulars. Again, neither the Ginwala Enquiry nor the PSC considered calling the Minister to explain her demand for full particulars. It is clear from the judgment of the Supreme Court of Appeal that the Minister is entitled to request information from the NDPP regarding a decision by the NDPP to prosecute or not to prosecute.

Advocate Simelane was criticised because of the allegation that he was interfering in the role of the NPA. This criticism was contrary to the judgment in the matter of National Director of Public Prosecutions v Zuma (573/08) [2009] ZASCA 1; 2009 (2) SA 277 (SCA) ; 2009 (1) SACR 361 (SCA) (12 January 2009), in paragraphs 30 to 34, that:

[32] Accordingly, the 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...... they are not incompatible (my addition and emphasis).

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.

Advocate Simelane was criticised that he had provided the former Minister of Justice with incorrect advice where he had drafted the letter dated 18 September 2007. The former Minister authorised and approved the contents of the letter by appending her signature thereto. The Ginwala Enquiry should have called the Minister as a witness and should have questioned her on these issues.

During or about 2004 the PSC conducted an investigation into allegations pertaining to mismanagement, corruption and procurement irregularities in the NPA. It submitted a report to Minister Mabandla as the Executive Authority exercising final responsibility over the NPA. The Accounting Officer (the Director-General) was advised by the PSC to take action against the CEO and others. This shows clearly that the PSC considers the DG as the accounting officer with the responsibility to implement the Public Service Regulations against members of the NPA. This procedure constitutes an acknowledgment of the role which the Director-General plays in respect of the NPA.

The Ginwala Enquiry in investigating the irretrievable breakdown in the relationship between the Minister and the NDPP should have called the Minster to give evidence as she was allegedly a party to the relationship which had allegedly broken down.5

Conclusion

In conclusion, having considered all relevant factors, I am satisfied that the PSC's recommendations do not justify conducting disciplinary hearing against Advocate Simelane for the following reasons:

1. The attack on the credibility of Advocate Simelane by the Ginwala Enquiry was without foundation as the letter was already in the possession of the Ginwala Enquiry and therefore there is no foundation in the allegation that Advocate Simelane had misled the Ginwala Enquiry because he did not disclose the letter;

2. As far as the allegation is concerned that Advocate Simelane had failed to disclose the legal advice that he had obtained, there is no reason to disbelieve him when he later corrected himself. Furthermore, the provisions of sections 36(3) of the NPA Act completely corroborate the evidence of Advocate Simelane that the NPA was accountable to him as the Accounting Officer with the exception of the DSO and the Confidential Fund.

3. The judgment of the Supreme Court of Appeal makes it clear that the Minister is entitled to request reasons from the NDPP for a decision to prosecute or not prosecute. The conduct of Advocate Simelane was in line with the directions to be found in the judgment.

4. The refusal of the PSC to adhere to the request to receive and consider representations by Advocate Simelane and their failure to give the opportunity to him to state his case is fatal to the outcome of the report and contrary to the audi alteram partem rule.

5. I have been assisted in considering the recommendations of the PSC by a submission on behalf Advocate Simelane prepared by Advocate D Unterhalter SC and Advocate G Malindi who have concluded that there was no merit in any of the findings by the PSC recommending a disciplinary enquiry against Advocate Simelane. I found the submission persuasive and consequently accepted it.

6. I therefore have at my disposal the recommendations by the PSC and the submissions by the Advocates and I have no hesitation to accept the opinion of the Advocates.

I am therefore satisfied that the decision not to subject Advocate Simelane to a disciplinary hearing is correct as there is no reliable evidence of misconduct which justifies a disciplinary enquiry.

On the whole I am indeed satisfied that Advocate Simelane is in fact a fit and proper person to provide leadership at the NPA. Furthermore, I am confident that as a cabinet member responsible for the administration of justice, I will continue to have a healthy professional relationship with the NPA founded on the provisions of the Constitution and the law. There is no doubt in my mind that the new NDPP will ensure that the NPA continues to discharge its prosecutorial mandate and independence in accordance with the Constitution which in terms of section 179(4) it provides as follows " ....that the prosecuting authority exercises its functions without fear, favour or prejudice".

Statement issued by The Department of Justice and Constitutional Development, November 30 2009

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