The following is an extract of the transcript of the cross examination of the Director General of Justice, Menzi Simelane, by Advocate Wim Trengove SC, at the hearings of the Ginwala enquiry on June 23 2008. Trengove was appearing for NDPP head, Vusi Pikoli. Simelane had been testifying against his client:
ADVOCATE WIM TRENGOVE (FOR PIKOLI): I want to turn to a different topic and that is the difference of opinion that existed between yourself and Mr Pikoli about your role in the NPA. You are acquainted with that topic, is that correct?
DIRECTOR GENERAL OF JUSTICE ADVOCATE MENZI SIMELANE: Yes.
TRENGOVE: And you are aware of the fact that part of the complaint against Mr Pikoli is based on your evidence to the effect that he did not permit you to play the role in the NPA that you believed you were entitled and obliged to do.
SIMELANE: Yes.
TRENGOVE: Correct. There was a difference of opinion between yourself and Mr Pikoli. Mr Pikoli's opinion was that he alone had the final say in the management of the NPA. Is that correct? I am not sure that your microphone is switched on, could you perhaps check.
SIMELANE: Yes that was his opinion.
TRENGOVE: And in fact he insisted that the constitutional independence of the prosecuting service required that to be so, correct?
SIMELANE: Yes in respect of prosecutorial decisions, yes that's what he said.
TRENGOVE: Your opinion on the other hand was that you were the accounting officer of the NPA, correct?
SIMELANE: I still am yes.
TRENGOVE: That was your opinion that you are the accounting officer and in that capacity that you have all the powers and duties the PFMA, Public Finance Management Act, Sections 38 to 43 confer on an accounting officer, is that correct?
SIMELANE: Yes that's my argument.
TRENGOVE: Could I ask you please to go to your supplementary affidavit where you deal with this topic.
SIMELANE: Yes I have got it.
TRENGOVE: Will you please go to page 6 paragraph 13.
SIMELANE: Yes.
TRENGOVE: You say in paragraph 13 that part 2 of the PFMA, compromising Sections 38 to 43, deals with the responsibilities of accounting officers. Am I correct in my understanding that your contention in other words is that your responsibilities were those spelt out in Sections 38 to 43?
SIMELANE: Yes of the accounting officer, yes.
TRENGOVE: And you go on:
"One such responsibility is to ensure the effective, efficient, economical and transparent use of the resources of the department, trading entity or constitutional institution."
Correct?
SIMELANE: Yes.
TRENGOVE: Now that was the difference between you and Mr Pikoli. He insisted that he was the head and had the final say. You insisted that in your capacity as accounting officer there are certain matters in which you had the final say, correct?
SIMELANE: Yes.
TRENGOVE: Now in fairness to you and in fairness to Mr Pikoli, could you please turn to the comment that you make on page 3, at the foot of the page, where you say in the very last line on page 3 in paragraph 8 you say the following, you are speaking about this difference between yourself and Mr Pikoli and you say:
"However having said that I wish to state that there was no acrimony between Pikoli and I as the differences between us were purely professional."
Is that correct?
SIMELANE: Yes that's correct.
TRENGOVE: So Mr Simelane as I understand you on this score you do not accuse Mr Pikoli of anything worse than that he held a view which differed from yours, correct?
SIMELANE: Yes and the consequences that flow from that view.
TRENGOVE: Oh yes, but you accept that he genuinely held a different view from yours, correct?
SIMELANE: Yes he held a different view.
TRENGOVE: And accepting that you differed from him on the law, given his perception of the law he acted entirely as he thought the law required him to do, correct?
SIMELANE: I think with respect to the responsibilities of the accounting officer I was of the view and still am of the view that Mr Pikoli actually has a much better understanding and shares the same understanding that I share on the responsibilities of the accounting officer.
TRENGOVE: I see, so what you are really saying is that he was dishonest?
SIMELANE: Well what I am saying is that he knows the correct position and in my discussions with him he, in fact he has even indicated on no less than two occasions that I am the accounting officer and therefore I should deal with ... (intervenes)
TRENGOVE: Are you saying that he was dishonest? That he said he knew one thing, but said another, is that what you are saying?
SIMELANE: Well if you call that dishonesty then so be it, but he definitely on no less than two occasions made it clear to me that you are the accounting officer, you deal with these issues.
TRENGOVE: Are you suggesting that while he insisted to have the final say in the management of the NPA, he actually knew that you had the final say as accounting officer?
SIMELANE: On the issues of accounting officer, yes he definitely knew, he was in that position.
TRENGOVE: Now that's a very serious accusation because that's an accusation of dishonesty, correct?
SIMELANE: If that's what you call it, but I can't tell you ... (intervenes)
TRENGOVE: No, no not what I call it. You do know what the difference is between honesty and dishonesty, don't you Mr Simelane?
SIMELANE: Yes I think I know the difference.
TRENGOVE: And the evidence of what you are now giving, the implication of what you are now saying is that Mr Pikoli was dishonest on this score.
SIMELANE: Well the point is that he deliberately argued that he is not, that the accounting officer is not responsible for the part 2 of the PFMA that you have just cited, if his evidence would be that those are not the responsibilities of the accounting officer, I disagreed with him there and I disagree with him today.
TRENGOVE: I am not asking you what the position would be if he said that or if he said this. I am asking you whether you are saying that Mr Pikoli was dishonest on this score. You were there, I wasn't. Was he dishonest or was it a purely professional difference of opinion on the law?
SIMELANE: It was a different view and it is a dishonest view in my opinion for Mr Pikoli to argue that he does not know and he doesn't agree that the accounting officer has those responsibilities in part 2 that you cited.
TRENGOVE: It was dishonest for him to argue that you say?
SIMELANE: Yes.
TRENGOVE: I see. Now that's a very serious accusation to make against the NDPP correct?
SIMELANE: Oh yes, it's a serious accusation.
TRENGOVE: Yes. Why did you never in any of your affidavits say anything of the kind?
SIMELANE: Say what? I think I stated it in the affidavits clearly that we differed on that particular point.
ADV MOROKA: Chair if Mr Trengove would refrain from interrupting the witness. He is entitled to finish his answer.
TRENGOVE: Mr Simelane, you never in any of your affidavits suggested that Mr Pikoli was dishonest in this score, correct?
SIMELANE: I never used the word dishonest in the affidavits.
TRENGOVE: By whatever name you did not accuse him of dishonesty, duplicity, or whatever you might call it, correct?
SIMELANE: No I didn't accuse him of dishonesty in the affidavit.
TRENGOVE: The only thing you said in your affidavit was:
"I wish to state that there was no acrimony between Pikoli and I and the difference between us was purely professional."
That means an honest difference of opinion between two professional people, correct?
SIMELANE: A difference of opinion and a professional one yes.
TRENGOVE: I want to suggest to you Mr Simelane your current evidence that Mr Pikoli dishonestly pretended to hold one view when in fact he knew better, is a fabrication in the witness box this morning, because you would otherwise have raised it in the affidavits.
SIMELANE: I disagree.
TRENGOVE: Show me where in the affidavits you raised it Mr Simelane?
SIMELANE: I have dealt with that point already.
TRENGOVE: Show me where you raised it Mr Simelane.
SIMELANE: I have dealt with that point already.
TRENGOVE: I beg your pardon?
SIMELANE: I have dealt with that point already.
TRENGOVE: No you haven't.
SIMELANE: Well I have.
TRENGOVE: Show me in your affidavit where you ... (intervenes)
SIMELANE: I have raised it.
TRENGOVE: Don't interrupt me. Show me where in your affidavit you made the point that Mr Pikoli is dishonest on this score.
SIMELANE: I will repeat it again, in the affidavit we didn't state, I didn't state that Mr Pikoli was dishonest in his view. I purely stated the fact that we had differences of opinion about the interpretation of and the application of the powers of the PFMA and the role of the accounting officer vis-à-vis the PFMA, that's dealt with at length.
TRENGOVE: And you made no accusation of dishonesty, correct?
SIMELANE: I didn't mention the word dishonesty in the affidavit.
TRENGOVE: I didn't ask about the word dishonesty. You made no accusation of dishonesty, correct ... (intervenes)
SIMELANE: I didn't accuse him of dishonesty in the affidavit.
TRENGOVE: Why not Mr Simelane?
SIMELANE: The point was made in the affidavits about what the point of difference was, there was no reason to mention that he was dishonest.
TRENGOVE: The professional opinion becomes a triviality if in fact the NDPP was guilty of dishonesty, correct?
SIMELANE: I am not sure it becomes a triviality, that's your opinion.
TRENGOVE: You agree that it's a lesser accusation to say that he held a different view of the law, than it is to accuse him of dishonesty?
SIMELANE: No I think it's a serious accusation to make, it goes to an NDPP's interpretation of what the law is that he should be applying. So I would imagine there is nothing trivial in it.
TRENGOVE: Why is a difference of opinion a reflection on the NDPP? Lawyers differ all the time?
SIMELANE: No, no on this particular point it's something about which Adv Pikoli has detailed knowledge, because he was in that position before as accounting officer and he exercised exactly the same powers.
TRENGOVE: Yes there is a difference of opinion between the two of you, correct?
SIMELANE: Yes and which there shouldn't have been in my view.
TRENGOVE: He says - you say you he is wrong, correct?
SIMELANE: Yes I say he is wrong.
TRENGOVE: And he says you are wrong.
SIMELANE: He said so yes.
TRENGOVE: Yes. So what makes you think that you are correct and he is wrong?
SIMELANE: Well I am correct, because he himself would say that you are the accounting officer, so you deal with the issues.
TRENGOVE: Have you taken legal advice on the issue?
SIMELANE: It's pretty straightforward, it doesn't need legal advice in my view.
TRENGOVE: Won't you answer the question. Have you taken legal advice on the question?
SIMELANE: No.
TRENGOVE: I see. We will get back to that question Mr Simelane. Mr Pikoli took his difficulty on this score to the minister, do you know about that?
SIMELANE: I don't remember, he may have definitely, I don't recall.
TRENGOVE: Won't you please refer to the annexure to his affidavit, VP23.
SIMELANE: Yes.
TRENGOVE: Do you have it?
SIMELANE: Yes I have got it. Issues of concern, yes.
TRENGOVE: It's a letter that he wrote to the minister on the 23rd January 2006 after he had been in office for a year. And you will see at the foot of the first page, he says:
"There are two issues of serious concern that I wish to address in this letter."
Do you see that?
SIMELANE: Yes.
TRENGOVE: And then he raises those issues on the following page, the second one of them is headed: Working Relationship with the DG. And he describes the issue and he says in the last paragraph on that page 2, he says the following:
"I have always favoured partnerships and cooperation and I still do, but an impression must never be created that the DG is my manager or I account to him. It is the minister of Justice and Constitutional Development who in law and fact exercises final responsibility over the NPA in terms of Section 33 of the NPA Act, and the NPA in turn accounts to parliament in terms Section 35(1) of the NPA Act.
If I am to succeed in my job, I cannot be told by the DG as to what a scarce resource is and the competency profile of my staff in my office. I find it annoying, undermining and totally unacceptable."
That was his position, correct?
SIMELANE: Yes.
TRENGOVE: Over the page he says the following:
"I have taken this extraordinary step of formally writing you, because in my meetings with you there is no time to raise some of these issues, which are pertinent and fundamental in strengthening one of the essential components of our criminal justice system that is vital for our democracy.
This letter can easily be misconstrued as smacking of arrogance and self-importance. I would like to assure you that what has moved me to write is my newly found strong love and passion for my job. All I want is to be allowed to do my job to the best of my ability and for those who appointed me to have the trust and confidence in my ability and judgment, despite all the challenges I face as the NDPP and how this has changed and affected my life and that of my family. The passion and commitment I have for prosecution will sustain and strengthen me."
Apparently the language of an honest and humble man, Mr Simelane, correct?
SIMELANE: I have no issue, I will agree yes.
TRENGOVE: I want to suggest to you that he was being patently honest in putting forward his problem. Do you accept that?
SIMELANE: I will accept that, I have no issue with that.
TRENGOVE: I beg your pardon?
SIMELANE: I would accept it, I have no issue with it.
TRENGOVE: Yes. Imploring the minister to help, correct?
SIMELANE: Yes.
TRENGOVE: What did the minister do to resolve this problem between you and him?
SIMELANE: Yes if I can just put this letter in context. The minister mentioned it to me and showed it to me once, so I did read it at the time that it was shown to me. What had happened before this particular letter and what had been happening, I can't remember if we dealt with it in the earlier evidence, is the route form for memoranda to the minister from the NPA and the NDPP is that it comes via the DG and in the memoranda I am expected to sign off and approve on expenditure. What had occasioned the points that Mr Pikoli raised in his letter, especially that bottom paragraph on page 2, had been my comments on a number of memoranda that had been submitted, in particular for travel of officials, where I had been commenting, not recommending that the minister approve some of the trips that were proposed. In particular this happened in particular with international trips, purely because I held a different view about the size of the delegation and the profile, the profile of the people that were proposed to travel. In particular on a number of occasions I raised the fact that the people that were travelling, as far as I was concerned, did not represent the demographics of the country from a transformation perspective and the NPA and that I argued that there be bigger mix of representivity in those delegations. So I would raise those particular issues. This is what, if I recall, occasioned Mr Pikoli writing this particular letter.
TRENGOVE: Won't you just answer the question though?
SIMELANE: I have answered the question by giving you the context to the point.
TRENGOVE: No I didn't ask you for the context. I asked you what the minister did to solve this problem.
SIMELANE: Well the minister asked me to discuss these issues with Mr Pikoli and that I should note his concerns.
TRENGOVE: Anything else?
SIMELANE: I don't remember anything in particular.
TRENGOVE: So the minister's response to this plea for help was to tell you to talk to him and note his concerns, is that correct?
SIMELANE: Well yes she did, she said: You must discuss this with Mr Pikoli because you are the accounting officer, he is the NDPP, you should be able to resolve these issues.
TRENGOVE: Yes and the minister then left it there, correct?
SIMELANE: I don't know.
TRENGOVE: And she complains today that the issue hasn't been resolved and contends that Mr Pikoli is unfit for office because he failed to resolve it. Is that what we must understand?
ADV KGOMOTSO MOROKA (FOR MBEKI): That's not what the minister said.
TRENGOVE: Is that what we must understand Mr Simelane?
MOROKA: What must be very clear Chair that there is an objection. If my learned friend wants to say what the minister said, he must put it properly and fairly to the witness.
TRENGOVE: I have put it properly and fairly Chair.
MOROKA: And where do you get that the minister said that?
TRENGOVE: The minister is making the case on behalf of the government that Mr Pikoli is unfit for office because of this difference between you and him, correct Mr Simelane?
SIMELANE: Amongst others yes.
TRENGOVE: Yes. When in response to this plea for help after a year in office, she did nothing but to tell you to talk to him, correct?
SIMELANE: Those were instructions to me, I don't know what she may have further discussed with Mr Pikoli.
TRENGOVE: You said you took no legal advice on this issue, correct?
SIMELANE: No, I don't remember really getting counsel opinion on it. No in fact, yes I think you are quite right, we actually did, we got the opinion of Adv Maleka, yes now I recall and Adv Khoza, yes we did.
TRENGOVE: Mr Simelane, you said you took no advice. You repeated that same answer and then when you saw me turning up a document you changed your mind.
SIMELANE: No you are quite wrong. What I was trying to recall was what the opinion was and it actually covered quite a lot of issues, more than this one specific issue. So I am quite correcting myself that we did actually get an opinion on a whole range of issues about the role of the NDPP. If I recall that was our opinion yes.
TRENGOVE: And from whom did you take the opinion?
SIMELANE: I remember from Adv Maleka and Adv Khoza.
TRENGOVE: Adv Maleka, one of the most senior practitioners at the Johannesburg Bar and an advocate of high standing, correct?
SIMELANE: Yes he is regarded as such.
TRENGOVE: Now in fact he provided you with an opinion and a supplementary opinion, is that correct?
SIMELANE: Yes I think there was a sup, yes.
TRENGOVE: I would - they are quoted in our heads of argument, do you have a copy of our heads of argument?
SIMELANE: No not here.
TRENGOVE: Can I present you with a copy? Madam Chair I am referring to page 48 of our heads of argument, paragraph 85. Mr Simelane, we quote in that paragraph from the main opinion of Advocates Maleka and Nobanda of 16 January 2007 and they say the following in paragraph 50:
"Our view is that the director general has no authority at all over the exercise of powers, functions and duties by functionaries of the National Prosecuting Authority. All that the director general is entitled to do is to exercise financial responsibility on the financial requirements of the National Prosecuting Authority. His powers in that regard are set out in Section 36 of the NPA Act, read together with the relevant provisions of the Public Finance Management Act."
Is that correct?
SIMELANE: Yes that is correct, the opinion, yes.
TRENGOVE: That was their opinion which said that Mr Pikoli is right and you are wrong, correct?
SIMELANE: I didn't read it to say I was wrong on the matter. I read the opinion to distinguish between the various responsibilities.
TRENGOVE: It says in the first sentence of that paragraph:
"Our view is that the director general has no authority at all over the exercise of powers, functions and duties by functionaries of the NPA."
Do you see that sentence?
SIMELANE: Yes.
TRENGOVE: Do you agree with that sentence?
SIMELANE: I don't agree with it in totality. There are aspects that I agree with.
TRENGOVE: The sentence encapsulates Mr Pikoli's view, correct?
SIMELANE: In parts it does, in parts it also does not.
TRENGOVE: And it contradicts your view.
SIMELANE: Yes in parts it contradicts my view, but not in totality.
TRENGOVE: And they then gave you a supplementary opinion of the same date and we quoted in paragraph 86 of our heads their paragraphs 9 and 10:
"The responsibility of the director general is to account for state funds received or paid out of the budget earmarked for the National Prosecuting Authority. That responsibility must be discharged in accordance with the provisions of the Public Finance Management Act. In that context the director general has the obligation imposed upon an accounting officer in terms of the Public Finance Management Act in relation to the expenditure of the National Prosecuting Authority.
The director general's responsibility to account cannot be elevated at all to the right to control the actions and activities of the functionaries of the National Prosecuting Authority."
Do you agree with that sentence?
SIMELANE: Yes that one I agree with.
TRENGOVE: You don't agree with it?
SIMELANE: I agree with it.
TRENGOVE: You agree?
SIMELANE: Yes.
TRENGOVE: "The director general's obligation to account cannot be elevated at all to the right to control the actions and activities of the functionaries of the National Prosecuting Authority."
Correct, you agree with that sentence?
SIMELANE: Yes I agree with that one.
TRENGOVE: And then it goes on:
"All what it means is that the director general should be able to explain the expenditure incurred by the National Prosecuting Authority in the performance of its powers, functions and duties, and to ensure that such expenditure is incurred in accordance with the relevant provisions of the Public Finance Management Act."
Do you agree with that sentence?
SIMELANE: I agree with that sentence.
TRENGOVE: "In other words the director general
must ensure that expenditure is not put to waste so as to result in fruitless and wasteful expenditure, or other improper expenditure prohibited or discouraged by the Public Finance Management Act."
Do you agree with that as well?
SIMELANE: Yes.
TRENGOVE: But the substance of this view is exactly what Mr Pikoli has been advocating all along, correct?
SIMELANE: In part yes.
TRENGOVE: Yes. So your lawyers, senior counsel whose advice you took, in substance agreed with Mr Pikoli, correct?
SIMELANE: They absolutely agreed with him in part, yes.
TRENGOVE: And disagreed with you.
SIMELANE: Yes in parts they disagreed, yes.
TRENGOVE: And you accept that their view was honestly expressed?
SIMELANE: Yes, I would say so yes.
TRENGOVE: And you would also accept that they are highly regarded expert lawyers, correct?
SIMELANE: Yes they are regarded as such.
TRENGOVE: And they agree with Mr Pikoli.
SIMELANE: In part yes.
TRENGOVE: Now I don't understand then why you say that when Mr Pikoli holds the same view he is being dishonest.
SIMELANE: I say he was not honest when he raised the issues with me, because what we were discussing was financial accountability. Where I agree with Mr Pikoli where he was correct was that the DG cannot instruct officials of the NPA in as far as their prosecutorial work was involved and the day to day activities that they are engaged in. Where I disagreed with him was when he made that argument to suggest and make it clear that the accounting officer can then not require certain information to enable the accounting officer to report. I think that is the distinguishing element in my view in the views that Adv Pikoli expressed and that they expressed.
TRENGOVE: When you received this opinion from senior counsel which at least in part supported Mr Pikoli and contradicted your own view, were you not persuaded that he was right and you were wrong?
SIMELANE: No, like I said he was right in parts, but he was not right in certain parts.
TRENGOVE: Were you persuaded to change your mind?
SIMELANE: On the issues over which I agreed with them and Adv Pikoli there was no issue on that, so I agreed with them ... (intervenes)
TRENGOVE: Even though, sorry.
SIMELANE: And it never became a point going forward.
TRENGOVE: So even though your lawyers contradicted you and agreed with him, it didn't change your view at all.
SIMELANE: I never had a contrary view on the aspects that Mr Pikoli argued quite correctly he was responsible for. On that one we were in absolute agreement.
TRENGOVE: Mr Simelane we have already established that at least in part the advocates contradicted your view and agreed with Mr Pikoli, correct?
SIMELANE: Yes correct.
TRENGOVE: Did that persuade you to change your mind?
SIMELANE: I didn't need persuasion on that one because I agreed with it.
TRENGOVE: Your answer simply doesn't make sense. You held a view which was contradicted by Mr Pikoli and was now contradicted at least in part by your lawyers as well. Did that persuade you to change your mind?
SIMELANE: Like I said to you there were two issues. On the one issue about the role of the NDPP as head of the NPA there was no disagreement between us. Where there was disagreement was on the responsibilities of the accounting officer insofar as the accounting is required and therefore what the accounting officer would need in order to account properly. On that point I disagreed and still disagree with Mr Pikoli on that point. Counsel on the other hand in their opinions don't contradict that and don't disagree with that particular view.
TRENGOVE: What did you do with the opinions when you got them? Did you give them to Mr Pikoli?
SIMELANE: No I didn't give them, I don't remember.
TRENGOVE: Why not? Why not? There is this burning issue between you and him and you now have senior counsel's advice on that issue. Why not give him the benefit of the opinions?
SIMELANE: Because the issue, there was no issue any more on those particular issues because ... (intervenes)
TRENGOVE: Except that, sorry.
SIMELANE: Because as I said to you, on the one part that confirmed what in any event we were in agreement with. On the other parts it confirmed exactly the point on which we were still in disagreement.
TRENGOVE: Mr Simelane, there is a burning issue between you and him. You hold different views. You take counsel's opinion and they agreed with him, at least in part. Why not share the opinion with him?
SIMELANE: No, I didn't think it was necessary to share it with him. I didn't think it was necessary at all.
TRENGOVE: Why not?
SIMELANE: Because as I said there was, on the issues that we were in disagreement, the opinion doesn't contradict me, so there is no reason to share it. I didn't see a need to share an opinion with him at that stage, no.
TRENGOVE: I want to suggest to you that the honest response would have been for you to say to him: You and I have this difference of opinion that's been causing friction between the two of us. Here is senior counsel's opinion, I put it on the table, let's agree to live by that view. That would have been the honest response.
SIMELANE: Yes I think with hindsight it would have possibly helped to have given him the view, but it was not going to resolve the issues, because we were quite clearly in disagreement over what the accounting officer was entitled to.
TRENGOVE: You concealed it because the opinion agreed with Mr Pikoli and contradicted you, correct?
SIMELANE: No, it was not his opinion, it was the opinion of the department, it was legal advice for the department.
TRENGOVE: I know it was for the department, but it contradicted you and supported him and that's why you concealed it.
SIMELANE: No in parts it did contradict my view, definitely and agreed with Mr Pikoli's view, but in parts it also didn't.
TRENGOVE: Did you share the advice with the minister?
SIMELANE: Let me see, yes I think I may have mentioned to the minister, yes.
TRENGOVE: Said to the minister: The advocates say Pikoli is right and I am wrong. Did you tell her that?
ADV MOROKA: (Microphone not on)
TRENGOVE: It is what the opinion says Mr Simelane.
SIMELANE: Yes I did mention exactly that, yes.
TRENGOVE: Now when you and the minister then came to this enquiry to contend that Mr Pikoli is not fit to hold office, correct, that's what this enquiry is about.
SIMELANE: Yes amongst others that's what the enquiry is about.
TRENGOVE: And you are, after the minister you are the state's main accuser, is that correct?
SIMELANE: Am I the state's main accuser?
TRENGOVE: You are the witness for the prosecution Mr Simelane.
SIMELANE: Yes.
TRENGOVE: Yes and you are the drafter of the papers, correct?
SIMELANE: Counsel drafted the papers.
TRENGOVE: I beg your pardon?
SIMELANE: Counsel drafted the papers.
TRENGOVE: No I am sure counsel settled the papers, but you were the organising client behind the papers, correct? You told us so on the last hearing.
SIMELANE: Counsel drafted the papers.
TRENGOVE: What was your role Mr Simelane?
SIMELANE: Oh, it was to assist yes, on behalf of government, yes absolutely.
TRENGOVE: Yes. You were intimately involved in the preparation of the papers.
SIMELANE: Absolutely.
TRENGOVE: And in those papers one of the grounds, one of the accusations advanced against Mr Pikoli is precisely this difference of opinion between you and him, correct?
SIMELANE: Yes.
TRENGOVE: And yet you don't tell the commission that you have taken legal advice on the question.
SIMELANE: Sorry, can you repeat that, I didn't hear it nicely.
TRENGOVE: You don't disclose to the commission that you had taken legal advice on the question.
SIMELANE: No I didn't think there was a need to disclose that I took legal advice on the particular issue.
TRENGOVE: But how can there not be a need to disclose it to the commission when you sit with senior counsel's opinion that contradict your own?
SIMELANE: No the point is, the point that we are taking issue with is still a point that Adv Pikoli is in disagreement with and that's what is relevant for these papers. It's not the issues over which there is agreement.
TRENGOVE: Mr Simelane we have established that counsel contradicted you at least in part. Why didn't you disclose that fact to the commission?
SIMELANE: Our argument on these papers are on which there was disagreement and that is what is stated here, not on the points that were settled that are no longer an issue.
TRENGOVE: Do you accept today and I quote again from the opinion:
"Our view is that the director general has no authority at all over the exercise of powers, functions and duties by functionaries of the NPA."
Do you agree with that Mr Simelane?
SIMELANE: I agree with that.
TRENGOVE: I see. And in fact in this enquiry when our side initially asked you for copies of those opinions, you refused to give them to us, correct?
SIMELANE: I think we may have taken a view that we shouldn't give them earlier, I don't recall specifically, that may be correct, I don't recall.
TRENGOVE: I want to suggest to you that your conduct in relation to these opinions has been blatantly dishonest Mr Simelane.
SIMELANE: (Laughs) I disagree.
TRENGOVE: An honest officer of the department, honestly seeking to assist this commission would have disclosed the fact that you held senior counsel's opinion, which supported Mr Pikoli and contradicted your view.
SIMELANE: We could have been able to have submitted them I suppose, but on the point that the commission has been asked to deal with by government, the opinions don't agree with Mr Pikoli on that.
TRENGOVE: Mr Simelane in law the NDPP is the head of the NPA, is that correct?
SIMELANE: Yes, yes he is.
TRENGOVE: In fact Section 179(1)(a) of the Constitution says the NDPP "is the head of the prosecuting authority", correct?
SIMELANE: Yes he is.
TRENGOVE: So under the Constitution he heads the Prosecuting Authority, correct?
SIMELANE: Yes we know that.
TRENGOVE: The NPA Act describes the structure of the Prosecuting Authority, it does so in Sections 2 to 5, correct?
SIMELANE: Yes.
TRENGOVE: It's a pyramid of which the NDPP is at the pinnacle, correct?
SIMELANE: Yes.
TRENGOVE: And you are not part of that - the DG of Justice is not part of that pyramid at all, correct?
SIMELANE: No, not of the NPA.
TRENGOVE: Section 22(1) of the NPA Act says that as head of the Prosecuting Authority the NDPP:
"Shall have authority over the exercising of all the powers and the performance of all the duties and functions conferred or imposed on or assigned to any member of the Prosecuting Authority by the Constitution, this Act or any other law."
You are acquainted with that provision?
SIMELANE: Yes I am.
TRENGOVE: And I emphasise, it says:
"The NDPP shall have authority over the exercising of all the powers and the performance of all the duties and functions conferred or imposed on or assigned to any member of the NPA."
Doesn't that make it absolutely clear who is the boss in that department?
SIMELANE: We have never disputed that point by the way.
TRENGOVE: I see. The NDPP also enjoys Constitutional independence in the exercise of his powers and the performance of his functions, correct?
SIMELANE: It's been argued so, yes.
TRENGOVE: I beg your pardon.
SIMELANE: It's been argued so, yes he does.
TRENGOVE: It's been argued so?
SIMELANE: Yes.
TRENGOVE: No, it's not being argued, the Constitution says so, correct?
SIMELANE: It says what?
TRENGOVE: It says that the - are you not acquainted with the Constitutional entrenchment of the independence of the NPA?
SIMELANE: I have heard arguments to that effect.
TRENGOVE: You have heard arguments. Have you not read the Constitution on this score?
SIMELANE: Where it says what?
TRENGOVE: Where it says in Section 197(4):
"National legislation must ensure that the Prosecuting Authority exercises its functions without fear, favour or prejudice."
Do you not understand that to be a guarantee of independence?
SIMELANE: It says without fear, favour or prejudice.
TRENGOVE: Mr Simelane just answer the question.
CHAIRPERSON: Please answer the question.
TRENGOVE: The question is do you not understand that section to be a Constitutional guarantee of independence?
SIMELANE: No I don't read it that way.
TRENGOVE: I see. And if Mr Pikoli suggests that it is, do you say that he is wrong?
SIMELANE: I would argue with him about it's meaning, if that's what he said.
TRENGOVE: I see. So your fundamental difference with him is that he contends that the Constitution guarantees the independence of the NPA while you dispute it, correct?
SIMELANE: I dispute that the Constitution says so.
TRENGOVE: I see. Can I tell you what the Constitutional Court says about it Mr Simelane and I am reading from the certification judgment where the Constitutional Court certified the Constitution, in paragraph 146 in which they referred to this provision of the Constitution Section 179(4). The Constitutional Court says the following:
"Section 179(4) provides that the national legislation must ensure that the Prosecuting Authority exercises its functions without fear, favour or prejudice."
And then please listen to the next sentence:
"There is accordingly a Constitutional guarantee of independence and any legislation or executive action inconsistent therewith would be subject to Constitutional control by the courts."
So the Constitutional Court agrees with Mr Pikoli, Mr Simelane, correct?
SIMELANE: To it?
TRENGOVE: The Constitutional Court agreed with Mr Pikoli.
SIMELANE: Yes the Constitutional Court yes.
TRENGOVE: And it contradicts you, correct.
SIMELANE: Yes I would say it does in that respect yes.
TRENGOVE: Yes indeed. How dare you - (pause)
SIMELANE: I beg your pardon?
TRENGOVE: How dare you take on Mr Pikoli to the point of accusing him of impropriety and contending that he is (not) fit for office when in fact you haven't read what the Constitutional Court has said about this section?
SIMELANE: The points raised in argument were not about the interpretation of the section, it was about the powers of the accounting officer.
TRENGOVE: I see.
SIMELANE: In terms of the PFMA.
TRENGOVE: It was not about the question whether he was right when he contended that the Constitution guaranteed the independence of the NPA, that's not what it was about?
SIMELANE: And we haven't contested that it does not.
TRENGOVE: I see. Despite the fact that you have never believed that the Constitution guaranteed the independence of the NPA, correct?
SIMELANE: The Constitutional Court interpreted the Constitution to give it that.
TRENGOVE: Mr Simelane I am asking you about your views. You told me five minutes ago that the Constitution didn't guarantee the independence of the NPA.
SIMELANE: The Constitution doesn't say so.
TRENGOVE: Yes, yes indeed.
SIMELANE: And you haven't read me a part in the Constitution that says so.
TRENGOVE: I beg your pardon Mr Simelane?
SIMELANE: I said you haven't read me the Constitutional provision that says what you are saying. You have read a judgment which interpreted the provision and that I agree with.
TRENGOVE: So what is the point you are making?
SIMELANE: No the point I am making is that the Constitution does not say that the NPA is independent.
TRENGOVE: And? So what Mr Simelane? The Constitutional Court has so interpreted the Constitution, correct?
SIMELANE: Sure, as interpreted by the Constitutional Court yes.
TRENGOVE: Yes so you were wrong and Mr Pikoli was right, correct?
SIMELANE: No we never made a point in our papers that contests that particular point.
TRENGOVE: Was the debate between him and you never about the independence of the NPA?
SIMELANE: No he argued that he is independent, that the NPA is independent, which we didn't disagree with.
TRENGOVE: Yes and you disagreed.
SIMELANE: What we argued about was the role of the accounting officer and the powers of the accounting officer and that remains the argument today.
TRENGOVE: Mr Simelane not only do your lawyers agree with him and contradict you, but the Constitutional Court does so too, correct?
SIMELANE: No our lawyers don't share the view that Mr Pikoli shares on the role of the accounting officer, no.
TRENGOVE: You didn't realise this morning that the Constitution guaranteed the independence of the NPA, correct? You discovered that in the last five minutes, correct Mr Simelane?
SIMELANE: No, not that the Constitution does it, no.
[CUT]
Click here to read an extract of the transcript of Advocate Trengove's cross-examination of the Director General of the National Intelligence Agency, Manala Manzini.
