Simelane appointment

Monday, 30 November 2009 08:56

More changing of the guard?

Menzi Simelane, who has been appointed by President Jacob Zuma as national director of the National Prosecuting Authority (NPA), has variously been described as being unfit for the job, a liar, arrogant, condescending and “guilty of misconceptions about the functioning of the Justice Department he formerly headed.” What could be the reasons for such a controversial appointment? Are we seeing a particular pattern developing?

Some observers point out that Simelane, who at 39 has relatively little legal experience, could be seen as another of Zuma’s Zulu appointees – most of whom have been appointed in the security sphere, including key justice related appointments.

Reference is often made in political circles to Zuma’s “Zulu mafia”, which has replaced Thabo Mbeki’s “Xhosa nostra” as a kind of Zulu cabal or inner circle in government.
Simelane is also considered to be an unquestioning "yes man" to Zuma.

Many also see Simelane’s appointment as national director of the NPA as cynical reward for his role played in frustrating the NPA’s investigations into Zuma's alleged involvement in arms deal corruption. It is also said to be his crowning glory for helping to bring about the downfall of his predecessor at the NPA, Vusi Pikoli, who played a key role in the attempted prosecution of Zuma.

His appointment displays a further disregard for judicial independence and the Constitution by the Zuma administration, and could mark the beginning of the end of the NPA's prosecutorial independence.

A staunch supporter of President Zuma throughout his trials and tribulations due to the corruption charges, Simelane, according to documented allegations, seems to be prone to twisting the truth and using somewhat underhand methods against his opponents. During the investigations into Zuma’s affairs, he made an enemy of Pikoli, who was then national director of the NPA and fought hard to have Pikoli removed.

Simelane was also a leading proponent for the disbandment of the highly successful Scorpions investigative unit that had investigated Zuma.

Simelane attended Prince Edward Boys’ High School in Zimbabwe, and received his two law degrees from the University of Natal. He was admitted as an advocate of the High Court in 1996. From 2000 to 2005, he served as Commissioner of the Competition Commission, having been its chief legal counsel for a year before that. From 2005 until his appointment as national director of the NPA, he served as director-general of the Department of Justice. Before that, he worked in the Transport and Trade & Industry departments.

Earlier this year, the former Justice Minister Enver Surty requested the Public Services Commission (PSC) to probe Simelane's conduct after the Ginwala Commission investigating Pikoli's fitness to hold office found that Simelane, then Justice director-general, had interfered with the independence of the NPA.

The Ginwala Commission also suggested that Simelane had lied to it during the inquiry and Ginwala made some scathing remarks about him. "His testimony was contradictory and without basis in fact and in law," said the Ginwala report. Nothing came of the PSC’s probe, however, as the current Justice Minister Jeff Radebe, a Zuma confidante and member of Zuma’s Zulu inner circle, ignored the PSC’s recommendation.

And last week, the head of the Ethics Committee for the Pretoria Society of Advocates, Senior Counsel Patrick Ellis, received a formal complaint against Simelane, specifically regarding his testimony before Ginwala's commission of inquiry.

His future as an advocate could technically be in the balance, but his political backing will probably neutralise any threat to his professional standing.

Already Radebe, himself a law graduate from the University of Zululand and the Karl Marx University in the former communist East Germany (which perhaps explains his support for a party/state functionary rather than an independent lawyer as NPA head), has defended Simelane’s appointment, saying he is appropriately qualified, fit and proper to do the job.

At a function in Durban last week, Radebe said he was happy with Simelane's appointment.

According to Radebe, Simelane’s background “speaks for itself” as he holds two degrees and was a director of the Department of Justice and Constitutional Development. However, Simelane has precious little real legal experience, having worked as a civil servant for most of his working life.

The respected University of the Western Cape legal expert, Professor Pierre de Vos, who also holds a chair in Constitutional Governance at the University of Cape Town, has been widely quoted in the media, saying it was difficult to support the "fiction" that Simelane was remotely "fit and proper" and that Simelane's appointment showed an "utter disregard for the Constitution and the law”.

On his blog, "Constitutionally Speaking", De Vos said “this is the darkest and most scandalous day yet in the short life of President Zuma's tenure”.

De Vos argues that Zuma acted unlawfully in appointing Simelane, as he “clearly does not meet the requirements” laid down in the National Prosecuting Authority Act, which states that the director had to be a "fit and proper person, with due regard to his or her experience, conscientiousness and integrity".

De Vos says Simelane's view of how the NPA should operate, was that it should take instructions from the Minister of Justice and the president, even in making decisions on individual cases. If so, that would ironically be in blatant contradiction of the views of a High Court judge who once ruled on this issue in Zuma’s favour and slammed former president Thabo Mbeki for his alleged interference in the workings of the NPA. This ruling was used as an excuse by Zuma and the ANC to remove Mbeki as president of the country.

As Justice director-general, Simelane also blocked attempts by the Democratic Alliance to probe the corruption-riddled arms deal, refusing to give representatives of the DA access to the German and British Mutual Legal Assistance agreements with South Africa. These agreements set out the details of South Africa’s co-operation with Germany and Britain in respect of their own investigations into the arms deal corruption.

Simelane also once described Pikoli as “not efficient at all”. Pikoli told the Ginwala Commission about the poor working relationship between his office as head of the NPA and the Justice Department headed by Simelane as director-general. He said that he had been frustrated by the slow responses to his communications regarding the corruption investigation of Zuma to the then Justice Minister Brigitte Mabandla. These communications had to go via Simelane, who often added notes for Mabandla’s attention at the bottom which delayed Pikoli’s work.

At the time, Pikoli and Simelane had fallen out when the latter, as the NPA's accounting officer, questioned a number of memoranda from Pikoli for expenditure for travel, particularly international trips, and he advised Justice Minister Mabandla not to approve them. The basis for Simelane’s advisory to Mabandla was his opinion that Pikoli’s people who travelled overseas “did not represent the demographics of the country and the NPA”.

In reaction, a highly frustrated Pikoli wrote to Mabandla, pleading that he be allowed to do his job.

NPA staff have expressed shock at Simelane’s appointment and expect him to attempt to reverse a number of decisions previously made by the NPA. They also see his appointment as the end of the prosecutorial independence of the NPA, which is intended to be protected by law.

Apart from Ginwala’s serious criticism of Simelane, including his "spurious" claims aimed at getting Pikoli fired, Simelane was also criticised earlier this year by the NPA over alleged "discrepancies" in a distorted account of the services available to child rape victims.

In July this year, the Law Society scathingly rejected Simelane's claims to the Constitutional Court that the government owed only R3.5 million to citizens who have successfully sued the state, saying his claim was "defective" and "out by many millions of rands".

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