Justice Minister Jeff Radebe on Monday criticised the Ginwala inquiry for its "attack" on new NPA head Menzi Simelane and the Public Service Commission (PSC) for failing to allow Simelane to state his case.

Briefing the media, Radebe said that having considered all relevant factors, he was satisfied that the PSC's recommendations did not justify conducting a disciplinary hearing against Simelane.

The attack on Simelane's credibility by the Ginwala inquiry was without foundation as the letter by former justice minister Brigitte Mabandla to former National Prosecuting Authority (NPA) head Vusi Pikoli was already in Ginwala's possession before Simelane gave evidence, and it was therefore not misled by his evidence.

The Ginwala inquiry should have called Mabandla if they had any queries regarding the letter, but failed to call her as a witness.

Regarding the allegation that Simelane had failed to disclose the legal advice that he had obtained, there was no reason to disbelieve him when he later corrected himself.

Furthermore, the provisions of sections 36(3) of the NPA Act completely corroborated the evidence of Simelane that the NPA was accountable to him as the accounting officer with the exception of the Directorate of Special Operations and the Confidential Fund, Radebe said.

The judgment of the Supreme Court of Appeal made it clear that the minister was entitled to request reasons from the NDPP for a decision to prosecute or not prosecute.

The conduct of Simelane was in line with the directions to be found in the judgment.

The PSC report on Simelane's conduct before the Ginwala inquiry did not provide Simelane with an opportunity to explain or respond to the allegations against him.

His response, subsequently submitted by Radebe to the PSC, was also not taken into account by the PSC, which stuck with its original report.

This meant he could not rely on the PSC report in considering whether disciplinary action should be taken against Simelane, Radebe said.

The refusal of the PSC to adhere to the request to receive and consider representations by Simelane and their failure to give the opportunity to him to state his case was fatal to the outcome of the report and contrary to the audi alteram partem rule.

Radebe said he had been assisted in considering the recommendations of the PSC by a submission on behalf of Simelane prepared by Advocate D Unterhalter SC and Advocate G Malindi who concluded there was no merit in any of the findings by the PSC recommending a disciplinary enquiry against.

"I found the submission persuasive and consequently accepted it.

"I therefore have at my disposal the recommendations by the PSC and the submissions by the Advocates and I have no hesitation to accept the opinion of the Advocates," he said.

"I am therefore satisfied that the decision not to subject Advocate Simelane to a disciplinary hearing is correct as there is no reliable evidence of misconduct which justifies a disciplinary enquiry.

"On the whole I am indeed satisfied that Advocate Simelane is in fact a fit and proper person to provide leadership at the NPA.

"Furthermore, I am confident that as a Cabinet member responsible for the administration of justice, I will continue to have a healthy professional relationship with the NPA founded on the provisions of the Constitution and the law.

"There is no doubt in my mind that the new NDPP will ensure that the NPA continues to discharge its prosecutorial mandate and independence in accordance with the Constitution which in terms of section 179(4) it provides as follows 'that the prosecuting authority exercises its functions without fear, favour or prejudice'," Radebe said.

In a statement later Democratic Alliance spokeswoman Natasha Michael accused Radebe of being "wrongheaded and disingenuous *1" in his defence of Simelane.

The appointed NDPP should be beyond reproach, and Simelane's appointment certainly had been a very bad start, she said.

"To cut a long story short, Menzi Simelane believes that the NPA should answer to the minister of justice.

"Inherent in that belief is the possibility that the minister would be able to influence whether directly or indirectly the decisions taken by the NPA with regards to which cases it should prosecute and which cases it should not," she said.

With acknowledgements to Jacques Keet and Sapa.