Government finally drops Menzi Simelane for good

The department of Justice and Constitutional Development confirmed to The Times that former national director of public prosecutions Menzi Simelane was no longer being paid a salary. Spokespeople said that he no longer worked for the NPA in any capacity.

Spokesman Mthunzi Mhaga said, “Although his salary has indeed been stopped, all processes including consideration of the implications of the [Constitutional Court] judgement insofar as it impacts on the appointment of an NDPP are underway. Due to legal implications involved in these processes, we are unable to give full details.”

In October, the constitutional court confirmed a judgement by the Supreme Court of Appeal that the appointment of Simelane as NDPP by Zuma was invalid. The president was ruled to have failed to keep to the provisions of the constitution - essentially for failing to apply his mind, and also for not considering that there were too many unanswered questions about his nominee’s character and experience. The ruling was sought for by the Democratic Alliance. 

The Johannesburg Bar denied that Simelane had been removed from it, as was reported by The Times.

“Modise Khoza SC, chairman of the Johannesburg Bar Council, was on Wednesday quick to correct a newspaper report earlier in the day that the Bar had met on Tuesday night to discuss the finalisation of charges against Mr Simelane. He confirmed that there had been a meeting of the council on Tuesday night, but said Mr Simelane had not been on the agenda and was not discussed — nor was he stripped of his membership,” BusinessDay said.

Simelane is understood to have not resigned from The Bar. However, a disciplinary process to determine if he is a fit-and-proper person to be an advocate is continuing. As a director-general of the Department of Justice and Constitutional Development, he gave testimony to the Ginwala Commission, which was probing the fitness of Vusi Pikoli to be an NDPP and was found to have tried to mislead the probe.

After the appeals ruling, Nomgcobo Jiba was appointed as acting NDPP. According to the justice department, she will continue in this role.

The DA said that the decision to settle Simelane’s contract would be questioned.

“We are concerned, however, at how much the Simelane saga is going to cost the South African public. It is reported that a settlement is being negotiated in respect of Simelane's contract, which could run into millions,” said Debbie Schafer, the DA shadow deputy minister of justice and constitutional development. 

“This, despite him having earned a large salary since 2009 for occupying a position he should never have held in the first place, as well as continuing to earn this salary whilst on special leave this year. We shall be asking questions in the new year regarding the legal basis for this decision, and the amount that will be paid out, if any.”

The judgement was a major blow to Zuma’s attempts to shield himself from any arms-deal related fall-outs. Simelane was appointed after making it clear that he did not believe that the NPA should be independent from the executive, even though the constitution plainly says that it must. The other big blot against him, as already mentioned, was the damning findings of the Ginwala Commission. 

In the SCA judgement, the court answered one of the ruling party’s complaints about the case. It dismissed the idea that the executive should not be subverted to the judiciary because it was elected by the people. 

“A democratic legislature does not have the option to ignore, defy or subvert the court,” the ruling said. “It has only two constitutionally permissible alternatives: it must either accept its judgment or seek an appropriate constitutional amendment if this can be done without subverting the basic foundations of the Constitution itself.”

For now, the new developments are the result of Zuma realising that Simelane had become a liability; he didn’t exactly fight to keep him after the SCA ruling. But he is going to need to consider that the reasons for appointing a lackey as NPA boss haven’t gone away. He unexpectedly called a commission of inquiry into the arms deal earlier this year, and we know that the more than 700 charges against him were not dropped after a court hearing. Simply put, on the arms deal, Zuma has not had his day in court, and has always been eager not to see it. The compromised NPA boss could have been a part of that plan.

The arms deal commission is expected to take up to three years to complete its work. Any number of things could have happened to change the situation by then. You can bet on it. DM

Read more:

• Appeal Court slams Zuma views, in Daily Maverick  

Photo: Menzi Simelane (Paul Botes, Mail & Guardian)