Understanding the Simelane judgment

In the past few weeks the justices have handed down some startlingly bold and independent decisions. ¹ There is no better example than the recent Simelane judgment, which confirmed that the President’s appointment of Advocate Menzi Simelane to the position of National Director of Public Prosecutions (NDPP) was invalid.

To understand Simelane’s downfall we need to recall his predecessor, Vusi Pikoli. ² Advocate Pikoli, a man of integrity currently sitting on the Commission of Inquiry into the Khayelitsha police, ³ is remembered for instigating criminal charges against disgraced South African police commissioner Jackie Selebi and ANC president Jacob Zuma.

In 2007 Pikoli was suspended from his duties by President Thabo Mbeki. ⁴ Mbeki set up a commission of inquiry headed by former Speaker of Parliament Frene Ginwala, to determine Pikoli’s fitness for office. ⁵ Pikoli was ultimately fired by Mbeki’s successor, Kgalema Motlanthe. Simelane–who was then Director General of the Department of Justice–operated as Pikoli’s chief executioner before, during and after the Ginwala Commission. But ironically–five years later–the commission has been career-ending for Simelane.

Until recently Simelane lived a charmed life. After the Ginwala Commission criticized his credibility, then Minister of Justice Enver Surty asked the Public Service Commission to investigate him. The PSC recommended disciplinary action. All of this was brushed aside by Minister of Justice Jeff Radebe, on whose advice, two days later, President Zuma appointed Simelane as NDPP, effective from 1 December 2009.

The NDPP is the most important law-enforcement position in the country. He has the power to institute criminal proceedings on behalf of the State, must determine prosecution policy and has the power to review a decision whether to prosecute or not. The Democratic Alliance brought a legal challenge to this, arguing that Simelane was not a fit and proper person. ⁶ In late 2011 five judges at the Supreme Court of Appeal agreed with the DA, ruling Simelane’s appointment invalid. ⁷ However under our Constitution an order of constitutional invalidity of any conduct of the President has no force unless it is confirmed by the Constitutional Court. ⁸ This the court did last week in one of the most scathing judgments to ever emerge from a South African court. ⁹

The main legal foundation which the Constitutional Court mapped out as the basis for its decision is known as the principle of legality. It is a slippery but important idea. In essence, all public bodies and officials–even the President–are constrained to exercise no power and perform no function beyond that conferred by law. It is also accepted that the decision must be rationally related to the purpose for which the power was conferred. Otherwise the exercise of the power would be arbitrary and at odds with the Constitution.

This is a difficult idea, but it was explained by the Constitutional Court in a case called Albutt:

The Executive has a wide discretion in selecting the means to achieve its constitutionally permissible objectives. Courts may not interfere with the means selected simply because they do not like them, or because there are other more appropriate means that could have been selected.
But, where the decision is challenged on the grounds of rationality, courts are obliged to examine the means selected to determine whether they are rationally related to the objective sought to be achieved.
What must be stressed is that the purpose of the enquiry is to determine not whether there are other means that could have been used, but whether the means selected are rationally related to the objective sought to be achieved. And if, objectively speaking, they are not, they fall short of the standard demanded by the Constitution. ¹⁰

So we are not dealing with an evaluation of the ends. Rather, as Justice Yacoob wrote in the Court’s judgment on Simelane, “rationality review is an evaluation of the relationship between means and ends.”

So how does rationality come into this case? The main question the court was asking was this: Given that the Ginwala Commission criticized Simelane’s integrity, shouldn’t this have factored into the President’s decision? Is it possible that a reasonable person could have properly evaluated the damage done to Simelane’s reputation and integrity by the Ginwala Commission and then still have appointed him to head South Africa’s National Prosecuting Authority? Was the appointment process utilized to achieve the type of appointment to this position envisaged by the Constitution?

The Ginwala Commission had said that Simelane’s conduct left much to be desired, that his testimony was contradictory and without basis in fact or in law. He was forced to concede during cross-examination that the allegations he made against Adv Pikoli were without foundation. In its judgment the Court quoted lengthy extracts of Simelane being cross-examined at the commission by Advocate Wim Trengove. You cannot read these extracts without squirming in your chair, wincing, laughing, shaking your head, feeling your mouth fall open, your eyes open wide, and your brain nearly fall out of your head. It appears that Simelane is a pathological liar.

Writing for the Court, Justice Yacoob says:

These extracts from the report of the Ginwala Commission ought to have been cause for great concern. Indeed, these comments represented brightly flashing red lights warning of impending danger to any person involved in the process of Mr Simelane’s appointment to the position of National Director.

Advised by Minister Radebe, President Zuma turned on his blue lights and sped through these red lights.

Simelane had drafted a letter to Pikoli for then Minister of Justice Bridget Mabandla ¹¹, telling Pikoli not to prosecute Selebi. This was done after Mbeki had written asking for information on the Selebi matter. To the commission Simelane did not disclose this letter, nor the reply, nor the President’s letter to Mabandla. This was just one area where he was demolished in cross-examination.

As Justice Yacoob wrote, “The contradictions reflect on Mr Simelane’s credibility, integrity and conscientiousness”.

He also failed to disclose to the commission that he had obtained an adverse legal opinion in regard to his disagreements with Pikoli. According to Yacoob this was “aimed at misleading the Commission” and was “dishonest”.

Despite all of this–and more–Minister Radebe, in advising the President prior to Simelane’s appointment, decided to ignore what had happened at the Ginwala Commission. As justification, he said that the commission was not a court. This explanation did not impress Justice Yacoob:

This is an irrelevant consideration. It does not matter for the purposes of evaluation of credibility whether a person is dishonest and devious to a court, to a commission of enquiry, to an employer or to anyone else for that matter. Dishonesty is dishonesty wherever it occurs. And it is much worse when the person who had been dishonest is a senior government employee who gave evidence under oath.”

The Court’s decision in this case is bold and a blow to President Zuma. It is also significant in that it is unanimous. Some have already claimed that it is an improper interference by the Court into the role of the Executive government–a so-called breach of the separation of powers. In fact the Minister argued before the Court that the NDPP is a “political appointee”.

But the Court held that, although “[i]t is true that the National Director is appointed by the President … It does not follow that this renders the incumbent of that office a political appointee”, but rather a “non-political chief executive officer directly appointed by the President”. The NDPP must not just be fit and proper “in the President’s view”, but must, in fact, be fit and proper. The fit and proper test, according to the Court, is objective.

According to Justice Yacoob:

[T]he determination of prosecution policy, the decision whether or not to prosecute and the duty to ensure that prosecution policy is complied with are, as I have said earlier, fundamental to our democracy.
The office must be non-political and non-partisan and is closely related to the function of the judiciary broadly to achieve justice and is located at the core of delivering criminal justice … “

The Court concluded as follows:

The difficulties concerning Mr Simelane’s evidence that appear from a study of the records of the Ginwala Commission were and remain highly relevant to Mr Simelane’s credibility, honesty, integrity and conscientiousness. The Minister’s advice to the President to ignore these matters and to appoint Mr Simelane … was unfortunate. The material was relevant. The President’s decision to ignore it was of a kind that coloured the rationality of the entire process, and thus rendered the ultimate decision irrational.”

It remains to be seen whether our government can learn from its mistakes.