Wyndham Hartley and Franny Rabkin
1 December 2009
Johannesburg — THE Public Service Commission (PSC), the Ginwala inquiry and former justice minister Brigitte Mabandla were all in the firing line yesterday as Justice Minister Jeff Radebe defended the appointment of Menzi Simelane as national director of public prosecutions.
President Jacob Zuma and Radebe have their backs to the wall on Simelane's appointment. Yesterday's defence comes amid a welter of criticism from the legal fraternity and opposition parties that Simelane is not a fit and proper person to lead the National Prosecuting Authority (NPA), as required by law.
The General Council of the Bar is considering whether to proceed with an investigation of Simelane and the Democratic Alliance is taking advice on whether there is a legal basis to challenge the appointment.
Key to the defence of the president 's choice of the next head of prosecutions -- Simelane takes office today -- was the fact that Simelane was not allowed to state his case to the PSC before it made its recommendation that he face disciplinary procedures.
Radebe said this fatally compromised the PSC investigation and its report to him and led him to the conclusion that its recommendations that disciplinary action be taken against Simelane had no merit. He said he had taken guidance from a submission to the PSC by two advocates on behalf of Simelane.
In a detailed dismissal of the allegations against Simelane, Radebe said that the Ginwala inquiry was about former prosecutions boss Vusi Pikoli's fitness to hold office, and not about Simelane .
Because Ginwala had probed Pikoli and not Simelane, the PSC decision to base its findings only on Ginwala's report, and not to hear evidence from Simelane on his conduct, was a fatal flaw.
"This completely violates advocate Simelane's fundamental rights to the principle that any person who is affected by a finding must be given the opportunity to defend himself, as dictated by the audi alterem partem rule," Radebe said.
"This failure by 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." This gave him sufficient basis to reject the PSC report, Radebe said.
Simelane had also been accused of interfering with the prosecutorial independence of the NPA, as director-general of justice, by drafting a letter on behalf of Mabandla that unconstitutionally instructed Pikoli to stop the arrest of then police commissioner Jackie Selebi. Radebe laid the blame on Mabandla, saying her signature on the letter "authorised and approved its contents".
He said commissioner Frene Ginwala should have called Mabandla to give oral evidence about the letter. She was not called , and her evidence was by written submission. There was speculation at the time that the government was desperate to avoid Mabandla giving evidence.
Radebe also rejected the PSC's finding that Simelane had breached the code of conduct for public service when he withheld from the inquiry a legal opinion on the proper relationship between the executive and the NPA. The legal opinion had supported Pikoli's view of the relationship between the executive and the NPA instead of Simelane's opinion.
During the inquiry, Simelane first denied having obtained the legal opinion but later admitted to it.
Radebe said Simelane had simply "corrected himself" with this admission, and that did not justify any conclusion that he was lying.
He said Ginwala's finding that Simelane "had no role to play" as far as the NPA was concerned was wrong. He based his view on the judgment of the Supreme Court of Appeal in a case involving President Jacob Zuma, which said that the minister of justice exercised "final responsibility" over the NPA.
Independent Democrats leader Patricia de Lille said Radebe's briefing was a "a futile spin exercise" .
"No amount of spinning by the justice minister will convince South Africans that advocate Simelane is a fit and proper person for this esteemed position," she said.
"The fact of the matter is that Simelane lied under oath during the Ginwala commission and was described by the commission as being 'arrogant and condescending' towards former NPA head Vusi Pikoli," De Lille said.
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