Zuma friend to get high office

The DA expresses surprise at reports that the President intends to appoint as the National Director of Public Prosecutions a Magistrate who is under investigation by the Magistrates' Commission (see report).

When the President appointed Adv Menzi Simelane as NDPP, we said the choice induced a sense of shock in view of his role at the Ginwala Enquiry into Adv Vusi Pikoli, and questioned how he could be fit and proper when measured against the NPA Act's requirements of conscientiousness and integrity.

We took legal action on those exact grounds, which were upheld first by the Supreme Court of Appeal and finally by the Constitutional Court. Both courts confirmed that the fitness and propriety of a NDPP is not a matter for the subjective judgement of the sitting President, as President Zuma in essence asserted. Rather, it must rest on objectively ascertainable jurisdictional facts supporting the requirements of experience, conscientiousness and integrity.

The fact that Magistrate Gumede has unresolved complaints pending against him invites enquiry into the objectively ascertainable jurisdictional facts about his suitability for the highest prosecutorial post in the country.

The President's views on suitability seem once again to be unacceptably subjective. Our President has  intimate knowledge of the prosecutorial process, at its receiving end. As if to underline that fact, he sent his lawyer Mr Michael Hulley to invite Magistrate Gumede to become NDPP.  Mr Hulley also became legal adviser in the Presidency in 2011, but the post under this Presidency perhaps has a dimension not normally present.

We note also that Magistrate Gumede hails from the President's home turf. The President's point of departure when appointing Adv Simelane was documented in his affidavits before the courts, and is purely subjective: "I am the person, as the President of the Republic, to be satisfied that the person is fit and proper".

In short, l'Etat, c'est moi (I am the State) as Louis the Fourteenth of France said.

Notwithstanding the clear rulings of both our highest courts, the President seems to have chosen his prosecutions chief from close to home, his vernacular Versailles at Nkandla.

Unless Magistrate Gumede is cleared of all suspicion, President Zuma remains out of step with the Constitution.

Statement issued by Dene Smuts MP, DA Shadow Minister of Justice and Constitutional Development, April 21 2013

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