Appointment of Jiba as successor may create even more controversy

President Jacob Zuma has "accepted" the Supreme Court of Appeal’s decision that set aside as "irrational" his appointment of Menzi Simelane as SA’s national director of public prosecutions and has withdrawn his appeal to the Constitutional Court, the Presidency said yesterday.

Presidential spokesman Mac Maharaj also announced that Mr Simelane had been placed on "special leave" and that Nomgcobo Jiba, the deputy national director of public prosecutions, would act in his stead "until further notice".

The National Prosecuting Authority is a key institution in the fight against crime. A succession of its national directors has been dogged by controversy and criticism since 2003 when its former head, Bulelani Ngcuka, spoke of a prima facie case of corruption against Mr Zuma, then deputy president.

With Ms Jiba’s acting appointment, the criticism looks set to continue. Just this month, Ms Jiba was appointed to act as head of the Special Investigating Unit. But this lasted only a week and she was replaced, with no reasons given, by Nomvula Mokhatle, after a chorus of questions were raised.

The Democratic Alliance’s (DA’s) Dene Smuts has previously said Ms Jiba has a questionable history with the National Prosecuting Authority (NPA) and has "engaged in both political and personal plotting, utterly unbecoming a prosecutor, in each case directed at senior prosecutor Gerrie Nel".

The Mail & Guardian has also reported that Ms Jiba was suspended from the prosecuting authority in 2007 and faced charges of dishonesty, unprofessional conduct and bringing the body into disrepute. The charges, also reportedly linked to a "vendetta" against Mr Nel, were abandoned in 2009.

Legally, Mr Zuma’s acceptance of the judgment does not mean the end of Mr Simelane’s appointment. The Supreme Court of Appeal’s order has "no force" until it has been confirmed by the Constitutional Court.

Mr Maharaj said Justice Minister Jeff Radebe would "pursue the matter, seeking clarity on various issues" in the confirmation proceedings at the Constitutional Court. In so doing, Mr Radebe had "the full support of the president", he said.

Justice spokesman Tlali Tlali clarified that this meant Mr Radebe would be opposing the confirmation ­ "in order to, among other things, obtain clarity from the highest court". This means there will be more than one party arguing the case before the Constitutional Court. But even if there had been no one to oppose the confirmation, it is still incumbent on the Constitutional Court to consider the appeal court’s judgment and decide whether to confirm it.

Legal experts said yesterday that Mr Zuma’s acceptance of the judgment would be a factor the court could take into account, but it would not be decisive.

So it is still possible, in theory at least, that the top court could decide not to confirm the judgment ­ meaning Mr Simelane’s appointment would have been validly made.

The DA’s James Selfe said it would be a waste of public money for Mr Radebe or Mr Simelane to carry on fighting the appeal court’s order.

"The Supreme Court of Appeal was both unanimous and emphatic in its judgment," Mr Selfe said yesterday.

"To drag this matter out still further would, in our view, simply constitute a waste of public resources."

The appeal court judgment by Judge Mahomed Navsa was indeed emphatic. And if his reasoning is substantially confirmed by the Constitutional Court, Mr Zuma will have to be guided by the judgment in choosing a successor to Mr Simelane, especially if he is considering appointing Ms Jiba permanently.

Judge Navsa held that whether a person was fit and proper for the job of prosecutions boss could be assessed objectively and was not a matter of the subjective discretion of the president.

While the National Prosecuting Authority Act did not detail how the president should make his assessment, the fit and proper requirement had to be interpreted in light of the act’s purpose: to ensure the authority exercised its functions without fear, favour or prejudice, Judge Navsa said. There had to be a "real and earnest engagement" with the fit and proper requirement.

He agreed with the DA’s argument that this meant the president had to obtain sufficient and reliable information on the candidate’s experience, integrity and independence.

•   State files for review of Simelane decision
•   Papers filed as Simelane matter goes to top court

With acknowledgements to Franny Rabkin and Business Day.

An excellent course forward would be to appoint Jiba permanently.

Then the DA can challenge that appointment which it will win at the same time as another 500 000 votes.

Other excellent options are to appoint either Gerrie Nel or Billy Downer.

The DA won't get any votes, but there'll be less room to hide for the wicked criminals who reside in our otherwise beautiful land.

But I still get all the legal finery regarding the Constitutional Court's validation of should be an essentially unapposed matter.

Next stop - Mac O'Flay.

Get it?