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Legal Actions Stacking up Against Simelane Appointment Legalbrief | your legal news hub Monday 27 September 2021 Legal actions stacking up against Simelane appointment Opposition to the appointment of Menzi Simelane as National Director of Public Prosecutions continues to mount, with President Jacob Zuma now facing the possibility of several legal actions to have the decision reversed. As reported in Friday's Legalbrief Today, a senior advocate - Pat Ellis SC - is to lay a complaint against Simelane with the Pretoria Bar Council tomorrow (Tuesday). Others planning to pursue legal action are the DA and the Public Service Accountability Monitor (PSAM), a non-governmental organisation. The gist of Ellis' complaint will centre around Simelane's fitness to hold office after his integrity was questioned by former National Assembly Speaker Frene Ginwala last year during an inquiry into former chief prosecutor Vusi Pikoli. DA leader Helen Zille, wrote in the party newsletter on Friday that she would 'fight this appointment', adding the DA was 'seeking legal advice to ascertain whether Zuma's decision is reviewable by a court, and whether such a legal challenge would have a reasonable prospect of success'. And the Congress of the People (COPE) urged Public Protector Thulisile Madonsela in a letter on Friday to 'intervene'. Meanwhile PSAM called on the Public Service Commission to make public a complaint that was laid against Simelane in 2008, described at the time by Justice Minister Enver Surty as 'serious', but later dropped by his successor Jeff Radebe. PSAM's Jay Kruuse said if the PSC was unwilling to release its findings, the PSAM would use the Promotion of Access to Information Act to get them. He added Simelane's appointment was 'ill-conceived, prejudicial to the integrity of the NPA and the rule of law'. Full report on the News24 site The General Bar Council of SA has confirmed it is ready to appoint a panel of advocates to investigate a complaint against Simelane, says a Cape Times report. Chairman, Advocate Patrick Mtshaulane SC, said advocates had to be appointed as there were legal issues involved. He said they would have to read through the Ginwala report and also consider other issues that were raised in the complaint. Full Cape Times report (subscription needed) Zille describes Simelane as 'the classic deployed cadre' appointed to ensure the case against Zuma is not re-opened. Speaking at her party's KZN congress, she said that while the appointment was a presidential prerogative, the DA believed Simelane's abuse of power while he was director-general of the Department of Justice made it clear he was 'unfit for public office'. A Sunday Times report points out that Minister of Justice Jeff Radebe has scheduled a news conference for today (Monday) to respond to criticism of Simelane's appointment. Full Sunday Times report Ellis explains his decision in a Mail & Guardian report in which he notes the gravity of Ginwala's findings against Simelane and the fact that the PSC has not released its report into allegations against him have prompted him to officially charge Simelane. 'I will table a memorandum before the Pretoria Bar council on Tuesday and they will have to take it from there. The Bar Council will then decide whether to investigate Simelane and if so, what form the investigation will take.' Zuma, who appointed Simelane on the advice of Radebe, has yet to explain his choice but Zuma's head of communications, Vusi Mona, shed light on the matter. According to Mona, Ginwala's findings 'were not relevant to Simelane's appointment because the Justice Ministry has processed the findings and decided not to proceed with disciplinary hearings'. Full Mail & Guardian report Simelane painted himself as the 'fall guy' for the Mbeki administration in winning over Zuma and Radebe, according to a speculative article in The Sunday Independent. It says he turned on former President Thabo Mbeki and former legal adviser Mojanku Gumbi, blaming them for his problems at the Ginwala Commission. The report also notes that the former Justice DG was not Zuma's first choice for the NDPP: it claims lawyer Dumisa Ntsebeza was approached just before the elections, but he turned the offer down. Simelane, however, tried to ingratiate himself with the new administration after Zuma became ANC president in 2007, promising to dismantle the Scorpions as quickly as possible and assisting in getting Zuma's charges dropped. The Sunday Independent says it understands that Simelane told Zuma and Radebe that the terms of reference for setting up the Ginwala inquiry and some of his controversial submissions were written by Gumbi. He claimed that he did what Mbeki's office had asked him to do. Full report in The Sunday Independent (subscription needed) It will be Simelane's sole task to issue policy directives, intervene in any prosecution process in which his directives are not complied with and review any decisions to prosecute or not to prosecute. The only constraints upon the exercise of these powers are that they comply with constitutional obligations, the rule of law and, in particular, legality and rationality, writes Paul Hoffman SC, a director of the Institute for Accountability in Southern Africa, in the Sunday Times. He points out that Simelane himself took a very different view of this legal position while he was DG of justice. 'It emerged from his evidence before the Ginwala Commission that he felt entitled, on behalf of his Minister, to instruct Pikoli not to prosecute then commissioner of police Jackie Selebi and, in fact, penned a letter telling Pikoli to desist. It remains to be seen whether Simelane will be prepared, now that he is NDPP, to accept instructions from the Department of Justice of the kind he issued to Pikoli in the name of his Minister.' Full Hoffman article in the Sunday Times .
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