Johannesburg – Constitutional Court judges asked on Tuesday how Menzi Simelane was chosen as the best man for National Director of Public Prosecutions despite an adverse report on him.
“My question is, why would a person who is controversial, be the first and only person who is considered?” asked Judge Johan Froneman.
The court was hearing an application by the Democratic Alliance to confirm a Supreme Court of Appeal ruling that Simelane’s appointment was invalid.
Judge Johann van der Westhuizen wanted to know what President Jacob Zuma and Justice Minister Jeff Radebe did to consider the “insinuations or findings which cast doubt over the candidate’s independence and integrity”.
Chief Justice Mogoeng Mogoeng asked whether Simelane’s “relationship with the truth” would have an impact on his suitability for appointment.
Marumo Moerane, for the justice ministry, maintained the ministry’s stance: “The president regarded Mr Simelane as a proper person who will fulfil the objectives of the Constitution, in spite of his foibles.”
He conceded it might have been appropriate to consider more than one candidate, but that was the president’s choice.
“The Constitution gives the president that power to decide, and it’s a special power. If he in his wisdom decided to open this to a competitive process, to open to one or two or three [candidates] he could do that,” said Moerane.
“But if he has his eye on one person, that he believes fits the bill, whether Jack or Jill or the DA disagrees with that, that is the power which the Constitution gives the president.”
Fit and proper
The report of the Ginwala commission of inquiry into Simelane’s predecessor Vusi Pikoli‘s fitness to hold office had raised concerns about Simelane’s understanding of the relationship between the justice department, where he was a director general at the time of the Pikoli events, and the National Prosecuting Authority.
He became involved in a series of events surrounding Pikoli’s attempts to arrest now jailed police commissioner Jackie Selebi for fraud and corruption.
Concerns about Simelane’s conduct in the report were referred to the Public Service Commission, but the president and justice minister decided that they held no sway in the appointment decision.
“The president did not accept that that was the import of the Ginwala findings – that he (Simelane) lacked integrity, that he was untruthful,” said Moerane.
David Unterhalter, for Simelane, said if the court found against the president, it should set aside the order of invalidity and give the president a chance to “do what is required”.
Otherwise, any decisions Simelane had made would be open to litigation.
DA counsel Owen Rogers submitted that it was not enough for the president to show after the fact that, “fortuitously”, the person selected was fit and proper.
If that was the case, the president could have put names on a wall and “thrown darts at them”.
The person had to meet the criteria for the job, and the president had to go about the appointment in a rational way.
“The president didn’t apply his mind to the matter properly…,” he said.
Simelane is on paid leave while the matter is under consideration.
Judgment is customarily reserved.