Introduction

In Democratic Alliance v President of the Republic of South Africa and Others (263/11) [2011] ZASCA 241 (1 December 2011), the Supreme Court of Appeal (SCA) unanimously decided that President Zuma's appointment of Mr Menzi Simelane as National Director of Public Prosecutions (NDPP) on 25 November 2009 was inconsistent with the Constitution and invalid. Simelane was controversially appointed as the NDPP following the removal from office of his predecessor, Vusumzi Patrick Pikoli. The SCA found that the President acted irrationally and  unlawfully when he appointed Simelane as NDPP and acted in breach of the prescripts of the Constitution and section 9(1)(b) of the National Prosecuting Authority Act 32 of 1998 (the Act).

Summary of the Judgment

The DA was granted leave to appeal to the SCA after the North Gauteng High Court dismissed its application for an order declaring that the President's decision to appoint Simelane as the NDPP was inconsistent with the Constitution and invalid.

In the SCA the DA argued that Simelane was appointed contrary to the requirements of section 9(1)(b) of the Act on the grounds that he was not a fit and proper person within the meaning of that expression in that subsection. Alternatively, when the President made the appointment he did not properly interrogate Simelane's fitness for office in the manner contemplated in the subsection as he was required to. In support of this contention the DA alleged that ‘misleading and untruthful evidence' was given by Simelane, during 2008, before the Ginwala Enquiry into the fitness for office of Pikoli. The DA also submitted that regard should be had to the provisions of s 179(4) of the Constitution, which requires the NPA to execute its duties without fear or favour, an obligation which the NPA could not discharge through Simelane, given his lack of integrity.

The SCA pointed out that in order to fully appreciate the importance of the National Prosecuting Authority (NPA) and the NDPP in our constitutional democracy it is necessary to bear in mind that the Constitution empowers those who govern and imposes limits on their power and to consider the wider constitutional scheme in which both the institution and the individual are dealt with. After systematically examining the Constitutional Scheme as a whole, the Court pointed out that the rule of law is a central and founding value. No-one is above the law and everyone is subject to the Constitution and the law.

The legislative and executive arms of government are bound by legal prescripts. Accountability, responsiveness and openness are constitutional watchwords. It can rightly be said that the individuals that occupy positions in organs of state or who are part of constitutional institutions are transient but that constitutional mechanisms, institutions and values endure. To ensure a functional, accountable constitutional democracy the drafters of our Constitution placed limits on the exercise of power. Institutions and office bearers must work within the law and must be accountable. Put simply, ours is a government of laws and not of men or women.

The court reminded us that institutions of state which are integral to the well-being of a functioning democracy - such as the NPA - have to be above reproach, have to be independent, and have to serve the people without fear, favour or prejudice. The Court concluded that section 179(2) of the Constitution, which empowers the NPA to institute criminal proceedings on behalf of the State and to carry out any incidental functions thereto, read together with the Act, confer awesome powers on the NPA and that it is central to the preservation of the rule of law that they be exercised with the utmost integrity. That must mean that the people employed by the prosecuting authority must themselves be people of integrity who will act without fear, favour or prejudice.

The Court held that it is against this constitutional and statutory background that section 9(1) of the Act has to be interpreted. 

The SCA proceeded to explain the importance of prosecutorial independence, referring to views in comparable jurisdictions and the Certification judgement in which the Constitutional Court stated that section 179(4) of the Constitution provides that the national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice. "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."

The SCA went on to declare the act of appointment of the NDPP by the President in terms of section 179(1)(a) of the Constitution as executive action which was not beyond judicial scrutiny. The SCA relied on the Pharmaceutical Manufacturers' case, the Affordable Medicines Trust case and the Masethla case to point out that the exercise of public power by the executive and other functionaries must be rational and in compliance with the Constitution, which is the supreme law, and the doctrine of legality, which is part of that law.

Having regard to the requirements of section 9(1)(b) of the Act, the SCA proclaimed that no process is prescribed, either by the Constitution or by any provision of the Act, for the President to follow in assessing a candidate's fitness for the position of NDPP. The national legislation envisaged in section 179 of the Constitution must ensure that the NPA exercises its functions without fear, favour or prejudice. That is the primary purpose of the Act. Section 9(1)(b) must consequently be construed to achieve that purpose. There has to be a real and earnest engagement with the requirements of s 9(1)(b). It is the least that ‘we the people' can expect and that s 9(1)(b) demands.

The President provided evidence to the effect that in addition to relying on Simelane's curriculum vitae, he relied on his personal knowledge of Simelane and the information received from the Minister in making his decision.

The SCA stated that in considering the appointment of an NDPP, the President must at the very least have regard to relevant factors that are brought to his knowledge, or that can reasonably be ascertained by him. Based on the facts, the President's starting point and approach were incorrect. The President already had "firm views" on appointing Simelane before asking for the input of the Minister of Justice on his appointment.  The SCA held that the President could not argue, as he did, that in the absence of any firm evidence to the contrary he could conclude that Simelane was fit and proper.

More was required from the President to comply with the law. Both the Minister and the President considered that the Ginwala Enquiry report was irrelevant or, based on a rigid view, that the Ginwala Enquiry enquired into Mr Pikoli's fitness for office and did not concern Simelane's integrity. It was clear from the President's account of his discussion with the Minister and from his description of his mindset that he took the view that the Ginwala Enquiry report, insofar as it related to Simelane, was a note of precaution to the National Executive, the NPA and Parliament and that it was not a report intended to have Simelane disqualified for future appointments.

The SCA found that both the Minister and the President wrongly discounted the previous Justice Minister's serious concerns about the criticism levelled at Simelane in the Ginwala Enquiry report and were too easily dismissive of the Public Services Commission's recommendation of disciplinary action against Simelane.

The Minister and the President therefore both made material errors of fact and law in the process leading up to the appointment of Mr Simelane, which spoke to both the  rationality and legality of the decision to appoint Simelane. In failing to take the Ginwala Enquiry into account, the President took a decision in respect of which he ignored relevant considerations. By doing so he misconstrued his powers and acted irrationally.

The SCA rejected the argument that in applying section 9(1)(b) of the Act the President is entitled to bring his subjective view to bear. This is so because the relevant section of the Act does not use the expression "in the President's view" or some other similar expression. Qualities like "integrity" must be assessed objectively. A person would have integrity if he or she possesses characteristics like ‘honesty, principle, honour, virtue, goodness, morality, purity, righteousness, probity, rectitude, truthfulness, trustworthiness, incorruptibility, uprightness, scrupulousness, reputability. In the view of the SCA the requirements of section 9(1)(b) are jurisdictional facts, the objective existence of which are a prelude to the appointment of the NDPP.

The President did not undertake a proper enquiry of whether the objective requirements of s 9(1)(b) were satisfied. On the available evidence the President could in any event not have reached a conclusion favourable to Mr Simelane, as there were too many unresolved questions concerning his integrity and experience.

The SCA accordingly set aside the order of the high court. The SCA substituted the high court's decision with an order declaring the appointment by the President of Simelane as the NDPP inconsistent with the Constitution and invalid and set aside the appointment.

Implications

This judgement is significant in light of the debate which has been re-ignited by the executive in relation to the balance of power between the executive and the judiciary. The SCA seems to have responded, albeit indirectly, to the comments emanating from the executive to the effect that "the powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote." In the SCA's view, the following statements by former Chief Justice Mahomed which apply to the powers of the judiciary to set aside laws made by the legislature are beyond criticism and apply equally when actions or decisions by the executive are set aside:

‘That argument is, I think, based on a demonstrable fallacy. The legislature has no mandate to make a law which transgresses the powers vesting in it in terms of the Constitution. Its mandate is to make only those laws permitted by the Constitution and to defer to the judgment of the court, in any conflict generated by an enactment challenged on constitutional grounds. If it does make laws which transgress its constitutional mandate or if it refuses to defer to the judgment of the court on any challenge to such laws, it is in breach of its own mandate. The court has a constitutional right and duty to say so and it protects the very essence of a constitutional democracy when it does. A democratic legislature does not have the option to ignore, defy or subvert the court. It has only two constitutionally permissible alternatives, it must either accept its judgment or seek an appropriate constitutional amendment if this can be done without subverting the basic foundations of the Constitution itself.'

The SCA's judgement is important because of the emphasis which it places on the principle that ours is a government of laws and not of men or women.  Accordingly, the President and other members of the executive must work within the law, they are bound by legal prescripts.  As stated by Kriegler J in President of the Republic of South Africa v Hugo:

‘Ultimately the President, as the supreme upholder and protector of the Constitution, is its servant and is obliged to obey each and every one of its commands.'

The court will not shy away from its constitutional mandate to invalidate conduct of the President that is not in accordance with the rule of law. In doing so, the court does not subvert the will of the people but rather fulfils its constitutional duty to uphold our constitutional democracy.

The SCA's decision reinforces the notion elucidated by Professor Etienne Mureinik, that we live in a society which has experienced a shift from a ‘culture of authority' to a ‘culture of justification'. This is a culture in which every exercise of power, including that of the President of the Republic, is expected to be justified.

As pointed out by Kate O'Regan, former Judge of the Constitutional Court, when delivering the annual Helen Suzman Memorial Lecture reflecting on the role and work of the Constitutional Court, ‘in fulfilling its constitutional mandate, the role of the Courts is not to thwart or frustrate the democratic arms of government, but is rather to hold them accountable for the manner in which they exercise public power'. This is what a culture of justification entails.

In terms of section 167(5) of the Constitution, the Constitutional Court makes the final decision whether or not conduct of the President is constitutional, and must confirm any order of invalidity made by the SCA before that order has any force. It therefore remains to be seen whether the Constitutional Court will uphold this landmark judgment.

Issued by the Helen Suzman Foundation, Justice and Governance, December 2 2011

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