Publication	Business Day
Date	2011-10-31
Reporter	Franny Rabkin
Web Link	www.bday.co.za

Party claims Prosecutions head Menzi Simelane is not fit and proper for his job and was appointed to ensure a "malleable" prosecuting authority

Prosecutions head Menzi Simelane was not fit and proper for his job and was appointed to ensure a "malleable" prosecuting authority, the Democratic Alliance (DA) has said in court papers.

The appointment of Mr Simelane as national director of public prosecutions in 2009 provoked a storm of criticism from commentators and opposition parties.

He was scathingly criticised by former speaker of Parliament Frene Ginwala in a report on the fitness of office of his predecessor, Vusi Pikoli ­ over Mr Simelane’s role in the events leading up to Mr Pikoli’s suspension. The DA has been fighting to overturn the appointment since.

The party lost in the high court but today will argue its case on appeal, in the Supreme Court of Appeal. In its legal argument, the DA said Mr Simelane was not fit and proper for the job ­ as required by the constitution and the National Prosecuting Authority Act.

The DA’s counsel, Owen Rogers SC, said the "fit and proper" requirement could be determined objectively and tested by a court. He referred extensively to Dr Ginwala’s criticisms, saying Mr Simelane misled the inquiry and his explanation of why he withheld a document from Mr Pikoli’s lawyers reflected "a serious lack of integrity".

The DA also took issue with the process President Jacob Zuma followed in appointing Mr Simelane, saying it was utterly inadequate.

Finally, the DA argued that in appointing Mr Simelane, Mr Zuma had acted with an "ulterior motive" ­ to secure a prosecutions head who would be "susceptible to influence" by the executive when making prosecutorial decisions, particularly in criminal probes of high-profile members of government.

But Mr Zuma and Mr Simelane, in their court papers, argued that whether Mr Simelane was "fit and proper" was a value judgment ­ made by the president. It was not something a court could review, unless Mr Zuma’s value judgment "invokes a sense of disbelief", said Mr Zuma’s counsel, Nazeer Cassim SC.

Mr Simelane’s counsel, David Unterhalter SC, argued a court could not interfere in the president’s choice on the basis that it was unreasonable. Unreasonableness of a decision maker was only capable of review if it was an administrative one, not if it was an executive one.

The DA’s complaint against Mr Simelane’s fitness for office was, "in truth, an attack on the president’s value judgment and the weight he attached to various relevant considerations", he said. "These are grounds associated with a reasonableness review, and go beyond the scope of a rationality inquiry."

In any case, the DA’s complaints about Mr Simelane’s fitness for office were "without merit", Mr Unterhalter said, and the DA had sought to "inflate the significance of certain events taken out of context, with a view to substituting its preference for that of the president".

Justice Minister Jeff Radebe ’s counsel, Marumo Moerane SC, defended the consultative process between Mr Radebe and the president, saying the DA’s argument on ulterior motive was "speculative and not borne out by facts".

rabkinf@bdfm.co.za

With acknowledgements to Franny Rabkin and Business Day.

This is the reason for the need for a Seriti Commission.

This is the reason for the need to do and redo the work that four other paid state agencies, the Office of the Auditor-General, the Office of the Public Protector, the National Directorate for Public Prosecutions and the Special Investigation Unit should have done ten years ago.

This is the biggest skermunkel in North Gauteng.

Owen Rogers SC is going to tear out a few gizzards this morning in Bloemfontein.

We'll be doing a few more in the same venue quite soon.

The next skermunkel in line is Mokotedi Mpshe.