The recent Supreme Court of Appeal judgment in the Menzi Simelane case is undoubtedly a very strong rebuke: do your job properly Mr President!
The court held that Zuma’s appointment of Simelane as National Director of Public Prosecutions was invalid because he wasn’t “a fit and proper person” to do the job, something that’s an express requirement of the National Prosecuting Act. Why? Because Simelane had lied at the Ginwala Enquiry, which was set up to established whether or not Simelane’s predecessor, Vusi Pikoli, was a fit and proper person to hold the office.
Frene Ginwala found that Pikoli was a fit and proper person for the job – but she was very critical of Simelane: “In general, his conduct left much to be desired: his testimony was contradictory and without basis in fact and law… several of the allegations levelled against Adv Pikoli were shown to be baseless... [and] may have been motivated by personal issues.”
Yet, despite this harsh criticism, and despite the Public Service Commission’s having recommended a disciplinary enquiry into Simelane’s conduct, President Jacob Zuma, ably supported by Justice Minister Jeff Radebe, merrily went ahead and appointed Simelane as Pikoli’s successor (After paying Pikoli off, of course!).
Zuma pretty much cooked his own goose when he said in his answering affidavit submitted to the court that he “considered the Ginwala Enquiry’s views on Adv Simelane as a note of precaution to the national executive... not a report to have Adv Simelane disqualified for future appointment”. In fact, said Zuma, Ginwala really wasn’t that relevant because “the individual under scrutiny was not Adv Simelane but Adv Pikoli”, which meant that there was no need for me “to read and reflect on the entire transcript of testimony, its import and inferences”. Radebe dropped Zuma in it even deeper when he said in his evidence that Zuma “had firm views on appointing Simelane, and simply wanted an opinion from me”.
Not good enough said Judge Navsa, speaking for all five judges. Although no process for appointing an NDPP is prescribed, “there has to be a real and earnest engagement with the requirements”, and this “does not allow for a firm view before a consideration of the qualities referred to therein”. Also, the President had been “too easily dismissive” of the serious concerns raised about Simelane, when “at the very least they required interrogation”. His failure to make such enquiries showed a lack of “rationality and legality”, even a lack of good faith and a misunderstanding of his powers. Busy as you may be Mr President, “time should be taken to get it right”.
The court also felt that Simelane was not someone who could exercise his duties “without fear, favour or prejudice” as required by the Constitution, something that’s rather important given the prosecuting authority’s “awesome powers”, including the power “to discontinue criminal proceedings”. And to fortify its view that independence is critical, the court quoted liberally from a variety of sources. For example, US prosecutor Jessica de Grazia, who said : “Prosecutorial independence... is under greatest threat… when a single party is dominant, when a country is poor, jobs are few, out migration high, when free media is suppressed, or when prosecutors target the top tier of economic or organised crime and there is a nexus to members of the political elite”. And Irish Director of Public Prosecutions James Hamilton, who said: “In totalitarian states or in modern dictatorships criminal prosecution has been and continues to be used as a tool of repression and corruption.” Sounds familiar.
But the judgment is also a warning shot fired by a jittery judiciary, one’s that’s been well and truly spooked by talk that it must stop interfering with government business, and that its judgments are being assessed by cabinet. The message from the court is clear – you may well look with envy on the unfettered powers that your colleagues north of the border enjoy, Mr Zuma, but this is a constitutional democracy, and there’s a clear separation of powers. Read the Constitution! As Judge Navsa patiently explained: “As we look back on 17 years of existence as a constitutional democracy... we must all as a nation breathe more easily in the knowledge that we have truly broken with an authoritarian past… where no safeguards existed to ensure that power was not abused.”
And, lest this be taken as the wild ramblings of one of those unreconstructed judges of the Appeal Court, Navsa then went on to remind everyone that judges of the Constitutional Court have said much the same. Like Judge Kriegler, who said: “Ultimately the president, as the supreme upholder and protector of the constitution, is its servant. Like all other organs of state, the President is obliged to obey each and every one of its commands.”
And Judge Ackerman: “We have moved from a past characterised by much which was arbitrary and unequal in the operation of the law to a present and a future in a constitutional state where State action must be such that it is capable of being analysed and justified rationally.”
And dealing with the argument that, because the President is the people’s choice, democracy is subverted when his decisions are overruled by a court, Judge Navsa went straight to the top, quoting former Chief Justice Mahomed: “That argument is, I think, a demonstrable fallacy. The legislature has no mandate to make a law which transgresses the powers vesting 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... A democratic legislature does not have the option to ignore, defy or subvert the court.”
The judgment is, of course, also a depressing reminder of what sort of president Jacob Zuma really is. A man whose actions are clearly motivated by self-interest, which at the moment seems to be all about ensuring that he’s able to live out his life in great comfort and without any nasty charges being brought against him. Take his refusal to appoint an enquiry into the arms deal until he could avoid it no longer (Zuma’s choice of judges for that enquiry is interesting too!); his decision to disband the Scorpions, for which he was of course taken to task by the Constitutional Court; his decision to ram the secrecy bill through Parliament; his appointment of lapdogs everywhere – Menzi Simelane at the NPA, Mogoeng Mogoeng at the Constitutional Court, and now Willem Heath at the SIU. Take his lack of judgment: look at the people with whom he associates – Schabir Shaik, Bheki Cele, Mac Maharaj; his laughable attempts to position himself as an international leader – is there anything more absurd than someone who has the carbon footprint that comes with being flown about in a private jet whilst your many wives roar around in blue-light convoys – seeking to lead the world on climate change?
We’ve all been thinking it for years. It’s high time someone said it: a man who has no judgment, little formal education and no interest in anything other than self preservation is not a fit and proper person to lead a modern constitutional democracy that wants to sit at the top table. – The Editor
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