The Democratic Alliance (DA) has gone directly to the Constitutional Court with an application to appeal against last month’s judgment that dismissed its case that prosecutions boss Menzi Simelane was not fit and proper for his office.

The DA has pursued its case since early this year ­ which has kept Mr Simelane under pressure over his appointment as national director of public prosecutions .

Should the Constitutional Court agree to hear the appeal, the issue would be concluded sooner than it would have been had it followed the normal appeal process of going via the Supreme Court of Appeal. Direct appeals to the Constitutional Court are, however, rarely granted.

Mr Simelane’s appointment in November last year by President Jacob Zuma , on the advice of Justice Minister Jeff Radebe , provoked a storm of criticism from various quarters.

The DA said the appointment was intended to secure a national director who was "malleable" to the wishes of the executive.

In its application for leave to appeal, the DA’s James Selfe was scathing of the judgment of acting judge Piet van der Byl, saying his conclusions were "not only superficial", but also "wrong in law".

In his judgment, Judge van der Byl had said the DA’s case on Mr Simelane’s fitness for office was a "formidable onslaught".

But he was nevertheless not convinced "on a balance of probabilities" that Mr Simelane was not fit and proper for office.

Mr Selfe said the judge had "spent a great deal of time summarising the arguments of the various parties". But his analysis of the arguments was superficial and wrong.

The judge had not explained why ­ despite finding that the DA’s criticisms against Mr Simelane "may be justified" ­ he had remained unpersuaded, Mr Selfe said.

He said the judge had also "erred in giving any weight" to Mr Simelane’s assertion that he believed in the independence of his office and the fact that the DA had not shown anything negative about him since his appointment. The lawfulness of the decision had to be assessed on the date of the appointment, Mr Selfe said.

The DA had challenged Mr Simelane’s appointment on a number of grounds, including that the process followed by Mr Zuma in making the appointment was irrational ­ because all he had before him when he made the appointment was Mr Simelane’s CV and an oral briefing from Mr Radebe.

Mr Selfe said the DA was approaching the Constitutional Court directly, instead of going to the Supreme Court of Appeal, because it was in the interests of justice that the issue be finally decided "at the earliest opportunity".

The case concerned only constitutional issues and would, in any event, have to be confirmed by the Constitutional Court, he said. But in case the DA is turned down by the highest court, the party had also applied for leave to go the Supreme Court of Appeal.

rabkinf@bdfm.co.za

With acknowledgements to Franny Rabkin and Business Day.